Court File and Parties

Court File No.: CV-15-6166 (Chatham) Date: 20231023 Ontario Superior Court of Justice

Between: Brian Kivell and Betty-Jo Kivell, Plaintiffs – and – Chatham-Kent Children’s Services, Christina Ruscica, and Robin Rose, Defendants

Counsel: Ray Colautti, for the Plaintiffs Jonathan DeVries, for the Defendants

Heard: October 4, 2023

Reasons for Decision

Macfarlane J.

Overview

[1] The plaintiffs, Brian and Betty-Jo Kivell [1] are husband and wife. They each claim damages for various heads of reputational harm and “nervous shock, anxiety and psychological trauma” [2] against the remaining defendants in this proceeding against the moving party defendants, Chatham-Kent Children’s Services, Christina Ruscica, and Robin Rose (collectively, “CKCS”) for alleged breaches of their rights under section 7 of the Canadian Charter of Rights and Freedoms, misfeasance in public office, and other torts. The facts underlying the claim involved an investigation by CKCS of Mr. Kivell that resulted in charges against him that were later dropped.

[2] The claim is vigorously defended, and among other defences, CKCS alleges that “If the Plaintiffs have suffered any loss or damages, which is not admitted but specifically denied, such loss or damages were caused by the actions or inactions of one or more of the Plaintiffs and/or by events, circumstances and/or conditions other than those as pleaded.” [3]

[3] Shortly before a scheduled trial in late 2022, Mr. Kivell delivered a report dated September 20, 2022, written by a proposed participant expert, Judy Emmerson (“Ms. Emmerson”), his treating psychotherapist. This was the first expert report of any kind served by Mr. Kivell, and at the time he had produced no medical or treatment records of any kind; moreover, at his examination for discovery in July 2017, Mr. Kivell had denied seeking any treatment or counselling for any psychological or emotional problem. On October 28, 2022, in ruling on a motion to adjourn the trial, Aston J. found that Mr. Kivell had breached his ongoing discovery obligations by failing to previously disclose that he had been receiving treatment from a psychotherapist since November 2020, several months before the pre-trial had been held. His Honour gave the plaintiffs the option to proceed to trial without leading evidence from Ms. Emmerson, which they expressly declined; as a result, the trial was adjourned and Mr. Kivell was ordered to produce a further and better affidavit of documents and attend further examinations for discovery. [4]

[4] Mr. Kivell has not complied with Aston J.’s order requiring him to produce a further and better affidavit of documents. He has, however, produced partially-redacted medical records, and has refused on further examination to provide unredacted copies to CKCS. He claims that they are embarrassing, irrelevant, and privileged. There are three separate redacted documents:

a) Counselling notes of Ms. Emmerson dated March 2, 2021, relating to a session attended by both Mr. Kivell and Mrs. Kivell [5];

b) An Intake Sheet completed by Mr. Kivell dated April 3, 2021 [6]; and,

c) Clinical notes of a treating physician, Dr. Leigh, dated November 22, 2019 [7].

The Motion

[5] CKCS moves for a further order to compel Mr. Kivell to produce a further and better affidavit of documents, and to require him to provide unredacted copies of the March 2021 Notes, the April 2021 Intake Sheet, and the November 2019 Notes.

[6] For the reasons set out below, the motion is granted.

The Positions of the Parties

(a) Mr. and Mrs. Kivell

[7] Although this was a motion brought by the CKCS defendants, it is appropriate to set out first the position of the plaintiffs who have claimed the right to produce redacted versions of the documents: They bear the burden of demonstrating that they are entitled to redact portions of the documents at issue and thereby curtail their otherwise broad disclosure obligations.

[8] The plaintiffs assert that “All three redacted portions deal specifically with a private and sensitive marital matter…” [8] between Mr. and Mrs. Kivell. They assert that:

a) the redacted portions of the documents are not relevant, and deal with a private and embarrassing marital matter;

b) disclosure of the irrelevant information will cause significant harm and undue prejudice to Mr. and Mrs. Kivell; and,

c) alternatively, if the redacted portions are relevant, they are privileged pursuant to the Wigmore criteria. [9]

[9] Essentially, the plaintiffs argue that if the redacted portions of the documents are irrelevant, they are entitled to redact them because disclosure would cause significant embarrassment and harm. They further argue that if they are relevant, the redacted portions are privileged because they meet the four “Wigmore” criteria, which are:

1. The information or communications must originate in a confidence that they will not be disclosed;

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties;

3. The relation must be one which in the opinion of the community ought to be sedulously fostered;

4. The injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation. [10]

[10] Mr. Colauti’s office provided the court with a link and password to access unredacted copies of the March 2021 Notes, the April 2021 Intake Sheet, and the December 2019 Notes. They urged the court to review the documents, and cited Rule 30.04(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides:

Court may Inspect to Determine Claim of Privilege

(6) Where privilege is claimed for a document, the court may inspect the document to determine the validity of the claim. [11]

[11] Plaintiff’s counsel asserted, without any authority, that it would be “an error in principle” for the court to decide not to review the unredacted documents.

[12] Apart from making the unredacted documents available to the court, should I determine that it is appropriate and necessary to view them, the only evidence submitted by the plaintiffs was the affidavit of Mr. Kivell. [12] In Mr. Kivell’s Affidavit, he asserts:

a) “The redacted information in all three of the documents…is not relevant to this Action, is embarrassing, sensitive in nature, and will cause significant harm and undue prejudice to me and my wife…” [13]

b) “…the redacted portions of the three documents in question are not in any way related to the damages suffered by me and my wife, as set out in the Amended Statement of Claim.” [14]

c) “The redacted portions relate to a very personal and private matter between me and my wife and do not pertain to the issues within this Action.” [15]

d) “I am willing to provide a sealed copy of the unredacted portion of all three documents to the motions judge to have him or her determine the relevancy and undue prejudice of the redacted information.” [16]

[13] In Mr. Kivell’s Affidavit, he clearly says that the redactions in the March 2021 Notes were made by Ms. Emmerson at his request. [17] He does not disclose any information about who made the redactions to the April 2021 Intake Sheet and the December 2019 Notes; from this, I infer that he made these redactions himself, or directed his lawyers to do so. [18] There is no evidence that either Ms. Emmerson or Dr. Leigh believe that the redactions are necessary for any reason.

[14] Mr. Kivell also asserts that the motion by CKCS was brought for an improper purpose, and attempts to explain his failure to comply with Aston J.’s order requiring a further and better affidavit of documents because the defendants have received the documents themselves. [19]

(b) The CKCS Defendants

[15] The CKCS Defendants assert that the complete and unredacted records are relevant and must be disclosed. They point to the pleadings, and specifically, the injuries and damages alleged by both Mr. Kivell and Mrs. Kivell, and the defence raised that if any injuries were sustained, they were caused by other factors. [20] They further say that unredacted copies of the documents are needed to allow the trial judge to properly assess damages, and with regard to the March 2021 Notes and the April 2021 Intake Sheet in particular they are needed because of the plaintiffs’ intention to call Ms. Emmerson as a witness at trial. [21]

[16] On behalf of the CKCS defendants, Mr. DeVries argued that the court should be very cautious about reviewing the unredacted documents. He said that doing so would be tantamount to conducting an ex parte hearing with respect to the relevance of the redactions, which is not within the contemplation of Rule 30.04(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [22], which he noted permits the court to review documents to determine only whether they are privileged.

[17] Mr. DeVries argued that the unredacted documents are relevant, with specific reference to the unredacted portions of the documents themselves, the pleadings, and Ms. Emmerson’s report. With respect to the April 2021 Intake Sheet, he argued that this was a document that was prepared by Mr. Kivell to explain the reasons that he was seeking psychotherapy. It lists more than one cause, including the conduct of the defendants, but also something redacted. Other redactions appear to relate to other therapy received. Both the causes for which therapy were being sought and the fact that other therapy had been received are, according to the CKCS defendants, relevant to plaintiffs’ claims for damages and the defences relating to causation.

[18] Mr. DeVries further argued that it is clear that Ms. Emmerson will be testifying with respect to the nature of the therapy she has provided, why the therapy was being given, and any diagnosis reached by her in the course of therapy. [23] He also noted with some emphasis that Ms. Emmerson’s report only identified the defendants’ conduct as a causal factor for Mr. Kivell’s psychological condition, but it is clear from the report and the unredacted portions of her notes that there are other causal factors involved, and the redactions from her March 2021 Notes related to both the nature of the treatment received and the recommended next steps.

[19] With regard to the November 2019 Notes, Mr. Devries pointed out that from the unredacted portion of the notes, it appears that the matter discussed was psychological in nature, and therefore relevant to the issues pleaded in the action.

[20] The CKCS defendants further argued that even if the redactions are not relevant, they are not permissible because there is no cogent evidence to excuse or explain the redactions and bring them within one of the narrow classes of permissible exceptions to the full disclosure rule. They pointed out that no issue of redaction had been raised before Aston J. when His Honour had ordered further discovery and further and better affidavit of documents. Moreover, merely producing the documents as relevant in relation to the pleadings does not prejudice the plaintiffs’ ability to object to the admissibility of the documents at trial.

[21] Finally, the CKCS defendants argued that the redacted portions of the documents are not subject to any claim of privilege, and if they were ever privileged, that privilege has been waived by the plaintiffs.

Issues and Analysis

[22] There is a preliminary issue to determine, and that is whether the court should review the unredacted versions of the documents prior to making a determination of the other issues. Once that has been considered, there remain four remaining issues for the court to consider:

a) Are the redacted portions of the documents relevant?

b) If they are relevant, are they privileged?

c) If they are irrelevant, is there good reason that they should remain redacted?

d) Should Mr. Kivell be ordered, again, to produce a further and better affidavit of documents?

Preliminary Issue: Should the court review the unredacted documents?

[23] There are many cases in which the courts have, in similar circumstances, reviewed the unredacted versions of documents. [24] I was not given any case that would support either the plaintiffs’ proposition that the court would be committing an “error in principle” if it declined to review the documents, or the defendants’ notion that any such review is only permissible in reviewing documents for privilege under Rule 30.04(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In referring to the decision of a court whether to review unredacted documents to determine a claim of privilege, the Supreme Court of Canada said the following:

In order to determine whether privilege should be accorded to a particular document or class of documents and, if so, what conditions should attach, the judge must consider the circumstances of the privilege alleged, the documents, and the case. While it is not essential in a civil case such as this that the judge examine every document, the court may do so if necessary to the inquiry. On the other hand, a judge does not necessarily err by proceeding on affidavit material indicating the nature of the information and its expected relevance without inspecting each document individually. The requirement that the court minutely examine numerous or lengthy documents may prove time-consuming, expensive and delay the resolution of the litigation. Where necessary to the proper determination of the claim for privilege, it must be undertaken. But I would not lay down an absolute rule that as a matter of law, the judge must personally inspect every document at issue in every case. Where the judge is satisfied on reasonable grounds that the interests at stake can properly be balanced without individual examination of each document, failure to do so does not constitute error of law. [25]

[24] I note that although the motion was brought in reliance upon Rule 30.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, none of the parties referred me to that rule in argument. It provides:

Where Affidavit Incomplete or Privilege Improperly Claimed

30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may,

(a) order cross-examination on the affidavit of documents;

(b) order service of a further and better affidavit of documents;

(c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and

(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege. [26]

[Emphasis added]

[25] While Rule 30.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 applies expressly to complete documents, rather than redacted excerpts of documents, the same approach is clearly permissible, and the practice should be determined by analogy to that rule. [27] Moreover, I believe that the principles enunciated by the Supreme Court of Canada in M.(A.) v. Ryan [28] are apposite, and find that the question of whether the unredacted documents should be reviewed is a matter of discretion for the motions judge. If there are good reasons to rely on only affidavit evidence in a particular case, that may be the correct course.

[26] In the instant case, there are three documents with redacted entries, comprising only a few pages. I have exercised my discretion to review the unredacted documents, both with respect to relevance and with respect to the question of privilege.

Issue No. 1: Are the redacted portions of the documents relevant?

[27] It is trite law that relevance is primarily determined by the pleadings in an action. Given the nature of the damages claimed by Mr. and Mrs. Kivell, and the nature of the defences pleaded, I find that the redacted portions of the documents are relevant. The redacted passages touch directly upon both the causes of the plaintiffs’ injuries and the relative extent to which those injuries were caused or contributed to by the defendants’ conduct and other factors.

[28] I would note that, even though I have reviewed the unredacted documents, I also accept the CKCS defendants’ arguments and evidence that the redacted portions of the documents appeared to be relevant based solely on the unredacted portions of the documents and the wording of the report of Ms. Emmerson, and I would have determined them to be relevant to the issues pleaded in any event.

[29] I respectfully disagree with the broad assertion by the plaintiffs that “…the marital relationship between Brian and Betty-Jo Kivell is not and has never been relevant to resolving the issues in this Action.” [29] On the contrary, it appears that certain incidents in that relationship which are referenced in the redacted portions of the documents may have been a direct cause of anxiety and depression which led to Mr. Kivell seeking treatment from Dr. Leigh in 2019 and psychotherapy from Ms. Emmerson in 2021. Particularly given that Mr. Kivell denied having received any treatment for such conditions at his examination for discovery in 2017, the relevance of these events is crystal clear.

[30] As noted by Strathy J. in McGee v. London Life Insurance Company Limited, 2010 ONSC 1408, “…[i]t is impermissible for a party to redact portions of a relevant document simply on the basis of its assertion that those portions are irrelevant.” [30] If the redactions are clearly irrelevant, then they may be permissible, particularly if an important interest (such as privacy of medical records) should be protected. [31] Where, as here, the redacted portions of the documents are clearly relevant, production of the unredacted portions of the documents may only be successfully resisted on a ground of privilege, which is normally asserted with respect to documents by listing them in schedule “B” of the party’s affidavit of documents.

Issue No. 2: If the redacted portions of the documents are relevant, are they privileged?

[31] The CKCS defendants noted that no privilege had been asserted by Mr. and Mrs. Kivell until they delivered their factum in response to the motion. This is true. Because Mr. Kivell has not yet produced a further and better affidavit of documents, no privilege has been formally asserted with respect to the redacted portions of the documents. Nevertheless, I find that it is appropriate to consider and determine the claim of privilege in the context of this motion, as a valid claim of privilege can only be lost by waiver [32].

[32] Although it is not entirely clear, it appears that Mr. and Mrs. Kivell have both asserted privilege over the redacted portions of the documents. However, I find that there is no evidentiary basis for any claim of privilege to be advanced by Mrs. Kivell. With respect to the April 2021 Intake Sheet and the November 2019 Notes, these documents have nothing to do with Mrs. Kivell other than a mention of her marriage to Mr. Kivell. Although Mrs. Kivell was noted to have joined a session with Ms. Emmerson and Mr. Kivell in the March 2021 Notes, there is no evidence that Mrs. Kivell was in a clinical relationship with Ms. Emmerson at that or any other time. Evidence on this point could have been led by Mr. Kivell or Mrs. Kivell, but it was not, and there is no evidence (apart from her attendance at one session with Mr. Kivell’s therapist, Ms. Emmerson) that Mrs. Kivell has received any treatment for any of the psychological injuries she has alleged in this action. Indeed, Mr. Kivell’s own description of the session refers to “…a session I had with [Ms. Emmerson] where I was joined by my wife…” [33], rather than “a session we had with Ms. Emmerson”. For these reasons, I reject any claim of privilege advanced by Mrs. Kivell.

[33] The CKCS defendants assert that no claim for privilege can be advanced in a case such as this, based upon the following passage written in 1985 by Cory JA (as he then was) in Cook v. Ip:

No doubt medical records are private and confidential in nature. Nevertheless, when damages are sought for personal injuries, the medical condition of the plaintiff both before and after the accident is relevant. In this case, it is the very issue in question. The plaintiff himself has raised the issue and placed it before the court. In these circumstances there can no longer be any privacy or confidentiality attaching to the plaintiff 's medical records.

[34] While Cook v. Ip has not been expressly overruled, the foregoing passage has not been relied upon very frequently, and in my respectful view it must be read in the present case light of the Supreme Court of Canada’s 1997 decision in M.(A.) v. Ryan [35], and specifically the following passage:

It remains to consider the argument that by commencing the proceedings against the respondent Dr. Ryan, the appellant has forfeited her right to confidentiality. I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation. [36]

[35] In M.(A.) v. Ryan, the Supreme Court of Canada determined that psychiatrist-patient records could in an appropriate case be subject to a claim of privilege [37], and it has long been recognized that medical records can also be privileged. Accordingly, the claim for privilege may be asserted by Mr. Kivell, but will only succeed if the elements of the claim are proven on the basis of the evidence.

[36] The communications at issue are notes forming part of the records of a treating psychotherapist and medical doctor. I have previously set out the four elements of a claim for Wigmore privilege [38]. Mr. Kivell’s evidence focused solely on his assertion that the redacted materials related to an irrelevant matter; he did not provide any evidence to the effect that he expected his communications with Ms. Emmerson and Dr. Leigh to be confidential or the importance of that confidence to himself or the community. Although, in general, it may be commonly understood that such relationships are confidential and that such confidences are important to the relationships and the community, in this case the communications in question arose after Mr. Kivell had commenced this action claiming damages for psychological injuries, after he had been examined for discovery, and after he was aware of his broad disclosure obligations in the litigation. None of that was addressed in his evidence.

[37] Notwithstanding the lack of evidence from Mr. Kivell, I am prepared to accept for the purposes of this motion that given the relationship between Mr. Kivell and his treating professionals, the first three elements underlying a claim of Wigmore privilege have been established. This should not be taken as acceptance of the broad assertion made by Mr. Colautti in his factum that “Medical records and counselling notes prima facie meet the first three steps of the Wigmore test” [39]. That statement was made with reference to obiter dicta made by Master Champagne (as she then was) in an employment case involving the production of human resources emails and should not be considered as a rule laid down in every case. [40]

[38] It remains for the court to consider whether the fourth element of the Wigmore test for common law privilege has been proven on the evidence, namely “The injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.” In my view, the evidentiary record falls well short of this.

[39] The balancing exercise in considering the fourth Wigmore factor was the subject of comment by the Supreme Court of Canada, which said:

Once the first three requirements are met and a compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. A document relevant to a defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production. Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. [41]

[40] Once again, I note that the exclusive focus of Mr. Kivell’s Affidavit was upon the claimed irrelevance of the “private” and “embarrassing” material he redacted from the documents. There is no evidence whatsoever, from Mr. Kivell, Ms. Emmerson, or Dr. Leigh (i.e., the three participants in the relevant “relationships” for the purpose of the Wigmore analysis) as to whether there would be any “…injury that would inure to the relationship by the disclosure of the communications…”.

[41] In contrast, it is clear that there will be significant benefit to be “…gained for the correct disposal of the litigation…” by the disclosure of the relevant redacted materials. Disclosure will allow the parties, and ultimately the court if the matter proceeds to trial, to more fully understand the psychological condition of Mr. Kivell and all the identified and diagnosed causes of that condition. It is only with a fulsome appreciation of the evidence that the parties and the court can objectively assess the degree to which, if any, the actions of the CKCS defendants caused or contributed to the plaintiffs’ damages. Even though the plaintiffs’ claims of privilege had not been raised at the time that Ms. Thompson’s Affidavit was sworn these issues are addressed in her evidence. [42] This is not a “fishing expedition”: On the contrary, the material redacted from the records is essential to parties’ and the court’s ability to have a complete understanding of the plaintiffs’ claims.

[42] It is important to note that the plaintiffs were given the option by Aston J. to keep all of Ms. Emmerson’s and Dr. Leigh’s notes and records out of the hands of the CKCS defendants by proceeding to trial and agreeing not to call Ms. Emmerson as a witness. They decided instead to submit to a further discovery process so that they can continue to rely on her evidence. That evidence is summarized in Ms. Emmerson’s report dated September 20, 2022 [43], in which she opines, inter alia, that “Brian continues to experience and describe mild to moderate depression, anxiety and stress symptoms. One of the persistent and constant triggers is directly related to the uncertainty and unknown outcome of the case with CAS.” [Emphasis added] The report does not discuss what other “triggers” might be causing or contributing to Mr. Kivell’s symptoms, but the CKAS defendants have a significant interest in exploring whether and to what extent the issues addressed in the redacted material may impact upon those symptoms.

[43] Accordingly, I reject Mr. Kivell’s claim for privilege. Although the plaintiffs have an interest in maintaining the privacy of the redacted material, that interest is completely overwhelmed by the evidence before the court of benefit to be “gained for the correct disposal of the litigation” from the disclosure of the redacted information. Given the limited scope of the redactions from the documents that have already been produced, I do not consider that any form of partial disclosure or other limitation on the production is necessary or desirable.

Issue No. 3: If the redacted portions of the documents are irrelevant, is there good reason that they should remain redacted?

[44] As I have found that the redacted portions of the documents are relevant, it is not necessary to address this issue.

Issue No. 4: Should Mr. Kivell be ordered, again, to produce a further and better affidavit of documents?

[45] This part of the motion should not have been necessary but given Mr. Kivell’s position that he should be excused from complying with Aston J.’s order [44] because the CKCS defendants already have the documents that would be listed in a further and better affidavit of documents, I must address it.

[46] Having found that “…the plaintiffs have breached their ongoing discovery obligations under Rules 30.07 and 31.09(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in a manner that causes significant potential prejudice to the defendants…”, Aston J. imposed several conditions upon Mr. Kivell, including an order made pursuant to Rule 30.06(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [45] that he serve a further and better affidavit of documents [46]. Had Mr. Kivell simply complied with that order in a timely way, it would presumably have had the salutary effect of alerting the CKCS defendants to any claim of privilege that might have been asserted over documents listed; instead, Mr. Kivell raised that claim very late in the day indeed in his factum in response to this motion.

[47] The CKCS defendants sought and obtained an order from the court requiring Mr. Kivell to provide a further and better affidavit of documents over a year ago. Mr. Kivell has ignored that order and complains that in simply seeking compliance with that order, “…this is another attempt by the Defendants to exert pressure on me and unnecessarily raise the costs of this Action.” [47] Frankly, the line between his position and contempt of this court is unclear to me. He must be forced to comply with the order, and although not sought by the CKCS defendants, I am of the view that his express willingness to ignore an order of this court must not be without consequences. Rule 30.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [48] provides that where a plaintiff to comply with an order of the court under Rules 30.02 to 30.11, the court may revoke his right, if any, to initiate or continue an examination for discovery; dismiss the action; or make such other order as is just.

[48] In all of the circumstances, I am of the view that Mr. Kivell should be given a final opportunity to comply with Aston J.’s order, failing which his claim will be dismissed.

Order

[49] For the foregoing reasons, an order shall issue as follows:

a) Mr. Kivell shall produce to the CKCS defendants, unredacted copies of the March 2021 Notes, the April 2021 Intake Sheet, and the November 2019 Notes, within 45 days of the date of this order; and,

b) Mr. Kivell shall comply with paragraph 1(b) of the order of Aston J. dated September 20, 2022, within 45 days of the date of this order, failing which his claim shall be dismissed pursuant to Rule 30.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Costs

[50] These motions were necessary due to the unilateral actions of the plaintiffs, and Mr. Kivell’s failure to obey an earlier order of this court. My presumptive view is that costs should follow the event, and I expect that experienced counsel will be able to agree on costs. Should they be unable to do so, the parties may make submissions with respect to the scale and quantum of costs in writing of no more than five (5) pages (formatted in strict compliance with Rule 4.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [49] and exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:

a. The CKCS defendants shall deliver their submissions within thirty (30) days following the release of this endorsement;

b. The plaintiffs shall deliver their submissions within twenty (20) days following service of the defendants’ submissions;

c. The CKCS defendants shall deliver their reply submissions, if any, which shall be limited to no more than three (3) pages, within five (5) days following service of the plaintiffs’ submissions; and

d. If either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the court may proceed to make its determination in the absence of their input or give such directions as the court considers necessary or advisable.

Original Signed by “Justice J.R. Macfarlane” J. Ross Macfarlane Justice

Released: October 23, 2023