COURT FILE NO.: CV-18-022 DATE: 2023-11-03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gordon Arthur Mason, Plaintiff AND: The Township of Carling, Gordon Mitchel Elliott and Pamela Joan Elliott, Defendants

BEFORE: The Honourable Madam Justice S.K. Stothart

COUNSEL: G. Roberts, Counsel, for the Plaintiff M. McMahon, Counsel, for the Defendant, the Township of Carling

HEARD: October 5, 2023

ENDORSEMENT

[1] The defendant, the Township of Carling, brings this motion seeking:

a. An order compelling the plaintiff, Gordon Arthur Mason to answer all outstanding undertakings and all questions improperly refused at his Examination for Discovery, which took place on November 9, 2022;

b. An order compelling the plaintiff to deliver a fresh affidavit of documents that includes fulsome, accurate and fully particularized Schedules A, B, and C; and

c. Costs of this motion on a substantial indemnity basis.

Background

[2] This action arises out of a property dispute between the plaintiff (“Mason”) who owns property at 8 Moccasin Trail, in the Township of Carling; and his neighbours the defendants, Gordon Mitchel Elliott and Pamela Joan Elliott (the “Elliotts”), who own the property next door at 6 Moccasin trail.

[3] The plaintiff objects to certain structures on the Elliott property and on the shore road allowance (SRA) in front of their property. He believes they are illegal and in contravention of municipal by-laws. In this action, the plaintiff seeks to have the structures removed from the Elliott’s property and to have the land restored to a prior condition.

[4] Shortly after purchasing 8 Moccasin Trail, the plaintiff commenced an application with the Township of Carling (the “Township”) to purchase the SRA that runs along the water in front of his property. It was his wish to acquire the SRA on a straight-line projection from his property to the water. The plaintiff’s attempt to acquire the SRA was in furtherance of his desire that the Elliott’s remove certain structures from the SRA that are close to his property.

[5] In this action, the plaintiff alleges that the Township has failed to enforce its bylaws and therefore is accommodating the illegal actions of the Elliott’s. The plaintiff further alleges that the Township improperly refused to sell him the SRA on the terms he requested. He alleges regulatory negligence, negligent misrepresentation, bad faith, misfeasance in public office and misconduct by a public authority against the Township.

[6] When the plaintiff was not having success with the Township in acquiring the SRA on the terms he requested, he hired Gordon Petch, a municipal lawyer, to provide an opinion as to the legality of the use and structures that were on the Elliott’s property and to assist him in his dealings with the Township.

[7] Mr. Petch obtained and reviewed materials about the property and ultimately provided a letter of opinion to the plaintiff dated September 6, 2016. This letter of opinion was shared with the Township. Mr. Petch also made submissions to the Township Council in support of the plaintiff’s SRA application.

[8] On or about October 19, 2016, the Township ultimately decided that it would not permit the plaintiff to purchase the SRA on the straight-line projection he proposed.

[9] On November 3, 2016, the plaintiff filed a complaint with the Township’s Chief Building Official (“CBO”) about alleged infractions at the Elliott’s property and sought enforcement of alleged violations of the Township’s zoning by-laws.

[10] On June 12, 2017, the Township’s Council passed a resolution that the plaintiff had 30 days to submit further documentation in support of his application to acquire the SRA or the Township would close its file. On June 26, 2017, the Township closed the plaintiff’s application.

[11] The plaintiff originally commenced these proceedings as an application in March, 2018. In 2021, the application was converted into an action.

[12] At the time the application was converted to an action, the parties agreed to a timetable whereby each party would deliver an affidavit of documents (“AOD”) by February 15, 2022 and examinations for discovery were to be completed by the end of May, 2022.

[13] AOD’s were delivered by the parties on February 14, 2022 (the Elliotts), February 18, 2022 (the Township) and March 20, 2022 (Mason).

[14] On April 6, 2022, the plaintiff, Mason, attended examination for discovery.

[15] On July 7, 2022, following a motion by the defendants, Justice A.D. Kurke ordered that the plaintiff re-attend for discovery, finding that counsel for Mason had unduly interfered with the April examination for discovery. A new timetable was agreed upon, whereby examinations were to be completed by October 31, 2022, undertakings to be answered by December 31, 2022 and any motions arising from the examinations to be brought before February 28, 2023. This timetable was later extended by one month.

[16] On November 9 and 10, 2022, the plaintiff attended a second examination for discovery, in accordance with Justice Kurke’s order.

[17] On March 6, 2023, the Township answered its undertakings. On March 8, 2023, the Elliotts answered their undertakings.

[18] On March 16, 2023, the Township filed this motion for answers to refusals/undertakings and for the production of a particularized AOD by the plaintiff.

[19] This motion was originally scheduled to be heard on April 11, 2023 as part of the short motions list. When it became apparent that the motion would take longer than one hour, Justice Wilcox directed that the motion proceed as a long motion and ordered that a pre-motion conference be held.

[20] Following the April 11th date, some progress was made between the parties. The plaintiff provided further answers to outstanding undertakings and set out his position on the unanswered refusals and under advisements. The plaintiff served an amended AOD on April 7, 2023.

[21] On August 10, 2023, a pre-motion conference was held before Justice Nadeau. At that time the parties advised that the issues had been narrowed and that there were now only 5 undertakings, 2 under-advisements, and 1 refusal that remained in issue.

[22] By the time the motion appeared before me, the parties narrowed the issues down to the following:

a. The Township seeks production of Gordon Petch’s file; and

b. The Township seeks an order that the plaintiff provide a fresh affidavit of documents that includes fulsome, accurate and fully particularized Schedules A, B, and C.

The Position of the Parties

The Gordon Petch file

The Township’s position

[23] The Township submits that Petch’s entire file, including any communications between Petch and Mason, is relevant to the issues of liability. The Township submits at para. 38 of its factum that “Mr. Petch’s file will demonstrate what knowledge Mr. Mason had regarding property lines, existing uses and structures of the Elliott Property prior to his purchase of the Mason Property, which go to the heart of the liability issues in this action”.

[24] The Township goes on to submit at para. 39 of its factum “Mr. Mason’s position in this action is based on the conclusions set out in the Petch letter. Mr. Mason relied upon the Petch letter in his application to purchase the SRA and he relies upon the Petch letter to support his claims in this action. As such, it is vital that the Defendants are provided with the supporting materials in Mr. Petch’s file. The Township should be entitled to a copy of Mr. Petch’s file so that it can fully understand the basis of Mr. Mason’s claims against it”.

[25] The Township submits that the file will provide evidence as to Mason’s knowledge of the zoning history, planning history, and the uses and permitted uses of the Elliot property which would have informed his beliefs when he commenced the application, which was later converted to this action.

[26] The Township submits that Petch’s opinion letter, addressed to the plaintiff, was provided to the Township. By providing the letter to the Township, the plaintiff waived of solicitor-client privilege over this advice.

[27] The Township submits that the plaintiff’s expert, Robert Dragicovic (“Dragicovic”) states in his affidavit that he reviewed certain materials in reaching his opinion in this matter. Some of those materials included documents provided by Mr. Gordon Petch. The Township submits that because those materials were reviewed by Dragicovic, they are part of the foundational materials that have shaped his opinion and findings. The Township submits that these materials must be in Petch’s file, and they should be produced to the Township.

[28] The Township further submits that the onus rests on the plaintiff to establish litigation privilege over Petch’s file. Litigation privilege would only apply to those portions of the Petch file created after the plaintiff formed an intention to commence litigation in this matter. The Township places this at some point after June, 2017, when they closed their file.

[29] The Township agrees that some of Petch’s file, such as the retainer agreement, any invoices, statements of account or any reference to trust funds are privileged. They do not seek disclosure of these materials.

The plaintiff’s position

[30] The plaintiff submits that it has produced those contents of the Petch file that are not covered by solicitor-client privilege and/or litigation privilege. It has disclosed the September 2016 opinion letter, the supporting materials and the materials provided to Dragicovic.

[31] The plaintiff submits that there is nothing left in the Petch file to disclose.

[32] The plaintiff submits that in this motion, the Township must first establish, on a balance of probabilities, that a document exists in order to obtain an order that it be disclosed. Once the defendants establish that a document exists, they must go on and establish that the document they seek is relevant to an issue in the action.

[33] With respect to the Township’s request for the entire Petch file, the plaintiff submits that even if there were additional materials in Petch’s file, they are covered by both solicitor-client and litigation privilege. Petch and Mason had a solicitor-client relationship. Petch was retained by Mason, to assist him with his ongoing SRA application and with his negotiations with the Township. Petch was also retained to commence this litigation, and drafted the original application filed in 2018.

[34] The plaintiff submits that even if the Township could establish that there are further documents in the Petch file, the entirety of Petch’s file is not relevant to this action. The plaintiff has no intention of calling Petch as a witness at trial and Petch is not a party to these proceedings. Further, the plaintiff has never placed any reliance on the advice received from Petch as an issue in this action.

The Affidavit of Documents

The position of the Township

[35] The Township submits that when they received the plaintiff’s AOD (which they call an index) it contained many deficiencies. The AOD did not attach the materials it referred to, rather it merely listed them. The list provided in the AOD was not in chronological order and some of the materials listed did not correspond with the affidavits filed. According to the Township it has been like a scavenger hunt trying to collate the plaintiff’s materials.

[36] The Township submits that the original attached schedules “A”, “B” and “C” were incomplete. For example, Schedule “A” did not include Stephanie Fleming’s affidavit. Schedule “B” did not include Petch’s file or the plaintiff’s expert’s report prepared in contemplation of litigation. Schedule “C” did not list items that the plaintiff no longer had in his possession.

[37] With respect to the plaintiffs supplemental AOD filed April 23, 2023, the Township submits that:

a. the documents are “bunched together” and should be broken up chronologically;

b. the amended “Schedule B” does not list the contents of Petch’s file and identify the plaintiffs’ position with respect to each item;

c. the amended “Schedule C” should refer to the documents that Mason destroyed, such as handwritten notes he made about the value of his property, inquiries he made about purchasing crown land, and materials he received from a listing agent.

[38] The Township submits they need a fresh and proper AOD so that they can prepare a proper document brief for trial.

The position of the plaintiff

[39] The plaintiff submits that these proceedings were originally commenced by way of application, and as such a number of supporting affidavits were already disclosed to the parties and filed. When this matter was converted to an action, an AOD was prepared which listed the original affidavits that were already disclosed and listed the exhibits attached to those affidavits. The plaintiff disagrees that the original AOD was disorganized. It simply listed the materials that had already been disclosed to the parties.

[40] The plaintiff submits that there is no legal authority that dictates how an AOD is to be organized. The plaintiff submits that he is only required to list and describe relevant documents in the AOD, and he has done so.

[41] With respect to some of the specific examples raised by the Township, the plaintiff submits that he has corrected any outstanding issues related to relevant information in the supplemental AOD.

[42] The plaintiff submits that the original “Schedule B” was a “generalized Schedule B” which is commonly used by civil litigation lawyers and mirrors the one provided by the Elliotts. He has now provided a supplemental AOD with a “Schedule B” that claims privilege over communications between Mason and Petch and Mason and his current lawyer, Mr. Roberts.

[43] The plaintiff submits that he is not required to list in “Schedule C” irrelevant things that he no longer has in his possession and control. The plaintiff submits that he has provided two expert reports on the issue of valuation, and it is irrelevant what a listing agent might have told the plaintiff about the value of the property in the past. Further, the fact that the plaintiff was interested in purchasing Crown land at some point is not relevant to these proceedings.

[44] The plaintiff submits that he has provided an AOD that complies with the Rules.

The Law

Privilege

[45] Solicitor-client privilege is a principle of fundamental justice and is a cornerstone of the Canadian justice system. It protects the fundamental and legal right of citizens to communicate in confidence with their lawyers. Solicitor-client privilege has been elevated to a fundamental and substantive rule of law. The Supreme Court of Canada has made clear that solicitor-client privilege "must be as close to absolute as possible to ensure public confidence and retain relevance. As such it will yield in only certain, clearly defined circumstances and does not involve a balancing on a case-by-case basis." Regina v. McClure, 2001 SCC 14 at para. 35, Descoteaux v. Mierzwinski, [1982] 1 S.C.R. 860 at p.875.

[46] Solicitor-client privilege should be interfered with only to the extent necessary to achieve a just result. Descoteaux v. Mierzwinski, at para. 27; Biehl v. Strang, 2011 BSCS 213 (B.C.S.C.), at para. 39.

[47] The burden of proving a waiver of solicitor-client privilege rests on the party asserting waiver. Shanthakumar v. RBC et al, 2023 ONSC 2209 at para. 66.

[48] Waiver is ordinarily established where it is shown that the possessor of the privilege: (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Waiver of privilege as to part of a communication will be held to be waiver as to the entire of the communication. Similarly, where a litigant relies on legal advice as an element of his/her claim or defence, the privilege which would otherwise attach to that advice is lost. Spicer v. Spicer, 2015 ONSC 4175 at para. 9-13, Pacific Concessions Inc. v. Weir, 2004 BCSC 1682 at paras 13-14; S & K Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983), 45 B.C.L.R. 218 (BCSC) at para. 6.

[49] Mere receipt of and reliance on legal advice is not sufficient to give rise to a waiver of privilege. However, where a party places their state of mind at issue and gives evidence that it received legal advice which, in part, formed the basis of that state of mind, the distinction between state of mind, and the legal advice-giving rise to it, cannot be maintained. Spicer v. Spicer, at para. 15.

[50] In Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para. 30, Justice Perell described deemed waiver as follows:

[A] deemed waiver and an obligation to disclose a privileged communication requires two elements; (1) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence; which is to say that the presence or absence of legal advice is material to the lawsuit; and (2) the party who received the legal advice must make the receipt of it an issue in the claim or defence.

[51] Litigation privilege is a fundamental principle of the administration of justice which serves an overriding public interest to ensure the efficacy of the adversarial process by protecting communications and documents created for the dominant purpose of use in, or advice concerning, actual, anticipated or contemplated litigation. Walsh Construction Company of Canada v. Toronto Transit Commission, 2020 ONSC 3688 at para. 20.

[52] Litigation privilege is narrower than solicitor-client privilege. The party claiming litigation privilege bears the onus of establishing an evidentiary basis or foundation for its claim, on a balance of probabilities. Blanket claims and bald assertions of litigation privilege are insufficient. Walsh Construction Company of Canada v. Toronto Transit Commission, at para. 24.

Affidavits of documents

[53] The Rules of Civil Procedure, R.R.O. 1990, reg. 194 (the “Rules”) dictate that any document relevant to a matter in issue in a given action and that is in the possession of a party to an action must be disclosed in an affidavit of documents (“AOD”), regardless of whether privilege is claimed in respect of the document, and a party to an action shall delivery on every other party an affidavit of documents disclosing to the full extent of that party’s knowledge, information, and belief, all documents relevant to the matter that are or ever have been in that party’s possession, control or power. Rules 30.02 to 30.03.

[54] An AOD shall list and describe, in separate schedules, all documents relevant to any matter in issue in the action:

a. that are in the party’s possession, control or power and that the party does not object to produce;

b. that are or were in the party’s possession, control or power and for which the party claims privilege, and the grounds for the claim; and

c. that were formerly in the party’s possession, control or power, but are no longer in the party’s possession, control or power, whether or not privilege is claimed for them, together with a statement of when and how the party lost possession or control of or power over them and their present location.

[55] Pursuant to Rule 30.06, where a 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, then 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 the claim of privilege.

[56] In a motion seeking an order pursuant to Rule 30.06, the onus rests upon the moving party to provide sufficient and/or persuasive evidence that the documents exist, are relevant, and have been withheld. This onus must be met on a balance of probabilities. Speculation, intuition and guess work are insufficient to support a request for such an order. R.C.P. Inc. v. Wilding; Bow Helicopters v. Textron Canada Ltd..

[57] Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely. Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the position of the parties. CIBC v. Deloitte & Touche, 2013 ONSC 917 at para. 69; Regina v. Pilon, 2009 ONCA 248 at para. 33.

Analysis

A. Gordon Petch’s file

[58] Gordon Petch initially represented the plaintiff for the purpose of advancing his concerns about the Elliott property and to assist with his ongoing application to acquire the SRA on a straight-line projection in front of his property. Mr. Petch communicated with the Township on Mason’s behalf, his legal opinion was provided to the Township and Mr. Petch made submissions to Council on these issues.

[59] At some point, late in time, Petch’s retainer changed and he commenced an application on behalf of the plaintiff, which was later converted to this action.

[60] During examination for discovery, the plaintiff undertook to provide Mr. Petch’s file, if the plaintiff intended to call Petch as a witness at trial. The plaintiff later advised that he did not intend to call Petch as a witness and took the position that Petch’s file was covered by solicitor-client privilege and litigation privilege.

[61] The parties agree that solicitor-client privilege over Petch’s September 6, 2016 opinion letter was expressly waived when it was provided to the Township as part of the negotiations surrounding the proposed acquisition of the SRA.

[62] In my view, once this opinion letter was provided to the Township, any solicitor-client privilege that would attach to the background materials and/or information provided by Mason to Petch, in support of this opinion, was also waived. As stated above, waiver of privilege as to part of a communication will be held to be waiver as to the entire of the communication.

[63] Mr. Petch states in his opinion letter that he was provided with an up-to-date survey, various plans, measurements, photographs and a copy of Minor Variance approvals dated November 18, 1985 and May 22, 2001. This is evidence that these materials existed, and it is reasonable to conclude that they would be in Petch’s file. These are the foundational materials that Petch relied on in support of his legal opinion, over which privilege was waived.

[64] The plaintiff agrees that these materials should be disclosed, however states that they have already been disclosed.

[65] Mr. Dragicovic’s affidavit, sworn March 9, 2018, states that he received “documents provided by Mr. Gordon Petch, counsel to Mr. Mason, which provide an extensive review of the development and municipal approval processes on the Elliott property at various times dating back to 1979”. This is evidence that Mr. Dragicovic should be in possession of these materials.

[66] The plaintiff agrees that no privilege attaches to the materials provided by Petch to Dragicovic. The plaintiff states that these materials have already been disclosed.

[67] This leaves the Township’s request for the rest of the Petch file (with the exception of materials related to retainer and fees). The Township submits that solicitor-client privilege over the entire file should be considered waived, on the basis of fairness and consistency.

[68] I am not satisfied that the Township has established waiver of solicitor-client privilege over the entire Petch file or that it would be just and fair to waive this privilege over the entire file.

[69] The plaintiff’s statement of claim includes a claim of negligent misrepresentation as against the Township. Specifically, the statement of claim asserts that on May 15, 2015, prior to the plaintiff’s acquisition of his property, the plaintiff spoke to the Township’s CBO who assured him that he could acquire the SRA in front of his property using a straight-line extension of the Mason/Elliott side lot line. The plaintiff alleges that on the strength of those assurances, he completed the purchase of 8 Moccasin Trail.

[70] The Township asserts in its statement of defence that if the CBO made any representations to the plaintiff concerning the purchase of the SRA, which is denied, then any loss or damage arising from the representation was caused, or alternatively contributed to by the plaintiff’s own act, omission, fault or neglect. The Township asserts that the plaintiff followed and relied on the advice of others, including Gordon Petch, with respect to the SRA.

[71] The evidence filed in support of this motion is that the plaintiff retained Gordon Petch after he purchased 8 Moccasin Trail and after he had applied to the Township to acquire the SRA in a straight-line extension. Paragraphs 11 to 14 of Gordon Mason’s affidavit, sworn February 28, 2018, state that by February, 2016, the Township was insisting that Mason agree to a line that would divert a portion of the SRA directly in front of his property to the Elliotts so that they could keep a marine railway and other structures that they had built on the SRA. After having no success with the Township, Mason retained Gordon Petch to review his file and provide him with an opinion as to the legality of the use and structures that were on the Elliott property and the merit of the position taken by the Township with respect to his proposed acquisition of the SRA.

[72] Given this sequence of events, I find that the Petch file will not likely demonstrate what knowledge the plaintiff had regarding the property lines, existing uses and structures of the Elliot property prior to purchasing 8 Moccasin Trail because Petch was not retained by the plaintiff prior to purchase.

[73] Further, the Petch file will not likely assist the Township’s claim that the plaintiff relied on Petch in his decision to purchase the SRA. The plaintiff applied to the Township to acquire the SRA on his own in 2015. The plaintiff did not retain Petch until he reached an impasse with the Township over the SRA in 2016.

[74] This is not a situation where the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence. The plaintiff has not claimed that he relied on Petch’s advice either in his decision to purchase the property or to apply to acquire the SRA.

[75] The Township’s submission that it is entitled to the entire Petch file because the plaintiff relied on Petch’s advice in deciding to commence these proceedings, appears to run counter to the very purpose of solicitor-client privilege. A client is entitled to consult with a lawyer, and obtain their advice, on a course of action. The fact that they consulted and received advice, prior to commencing an action, does not support a waiver of solicitor-client privilege.

[76] I am satisfied that the remaining portions of the Petch file, if they exist, are covered by solicitor-client privilege.

[77] With respect to the issue of litigation privilege, I agree that when Petch was initially retained it was for the purpose of negotiating a resolution of the SRA. In his examination for discovery, Mason stated that his intention to pursue litigation occurred sometime after he went before the council with his lawyer and council would not even listen to what they had to say. Based on the materials provided in support this motion, this meeting appears to have occurred on November 14, 2016.

[78] As such, I am satisfied that any materials contained in the Petch file, following November 14, 2016, would be protected by litigation privilege. By this point, it is reasonable to conclude that the communications between Petch and Mason would be with respect to anticipated or contemplated litigation. The fact that further attempts were made to resolve the matter, does not detract from my finding that after the Council meeting, the plaintiff was contemplating litigation because he believed the Council would not listen to his submissions.

[79] If I am incorrect with respect to the issues of solicitor-client and/or litigation privilege, I must consider whether the Township has met its onus to establish, on a balance of probabilities, that documents exist, that they are relevant, and that they should be disclosed.

[80] The plaintiff has provided an affidavit from Deanna Duffy, a litigation law clerk with his counsel’s office, dated September 26, 2023. Ms. Duffy states at para. 14 of her affidavit that “all of the documents in Mr. Petch’s file were included in Mr. Dragicovic’s affidavit. There are no other documents. When we received the file, it did not contain any notes taken by Mr. Petch, but in any event, if there were notes, they would not be producible”.

[81] Apart from Ms. Duffy’s conclusory statement regarding whether the lawyer’s notes would be producible, she does state that all of the documents in Mr. Petch’s file have been disclosed.

[82] With respect to specific items that the Township believes have not been disclosed from Petch’s file, the Township submits the following:

a. There must be additional materials in Petch’s file, received from Mason, because he refers to them in his opinion letter. In the letter Petch refers to receiving: an up- to-date survey of the Mason and Elliott properties, various plans, measurements, photos and a copy of the Minor Variances approvals dated November 18, 1985 and May 22, 2001;

b. There must be e-mail correspondence between Petch and Mason (or their respective offices) because the Township has an e-mail exchange with Mr. Petch’s office, where the plaintiff’s business e-mail was cc’d;

c. There should be notes from Petch’s visit to the Mason property, because Petch attended at the property and made observations; and

d. There should be a copy of the materials that Petch provided to Dragicovic, because Dragicovic refers to receiving and reviewing these materials.

[83] With respect to these specific examples, I note the following:

a. The up-to-date survey of the Mason and Elliott property, is attached as exhibit B to the Mason affidavit sworn February 28, 2018;

b. A second plan, showing the boundaries of Mason’s proposed acquisition using a straight-line-extension, is attached as exhibit C to the Mason affidavit:

c. Photographs taken by Mason concerning issues he had with the Elliotts, are attached as exhibits D to P to the Mason affidavit;

d. A plan prepared by the Township in October, 2015, is attached as exhibit R to the Mason affidavit;

e. Mason states in his affidavit that when he retained Petch, he provided Petch with a copy of the plans set out in exhibit B and C; and the photographs contained in exhibits D to P; and

f. The Minor Variances approvals dated November 18, 1985 and May 22, 2001 are contained in Robert Dragicevic’s March, 2018 affidavit.

[84] Based on these materials, I am satisfied that the Township has received the materials relied on by Petch in forming his September, 2016 opinion and the materials that were forwarded to Dragicevic.

[85] In my view, the Township has not met its onus of establishing that that there are other materials that were relied on by Petch in his September opinion letter or provided to Dragicevic as a foundation for his opinion in the Petch file.

[86] I am satisfied that e-mail communications were exchanged between Mr. Petch’s office and Mr. Mason’s business office. Mason stated at his examination for discovery that he does not use e-mail. However, I find it is reasonable to conclude that Mason employs staff at his business to manage his e-mails. Further, a specific example of an e-mail communication between Mr. Petch’s office with a copy to Mr. Mason’s business office was provided by the Township.

[87] However, I have received no evidence that these e-mail communications contain relevant evidence to these proceedings. As noted above, Mr. Petch was retained at a point in time when Mason was getting nowhere with the Township. I fail to see how communications between Petch and Mason, during the time they attempted to negotiate with the Township, would be relevant to the issues in this action.

[88] In conclusion, I find that the Township has already been provided with the materials from Petch’s file that are not covered by solicitor-client privilege.

[89] Further, I find that the Township has failed to establish that there are further materials in the Petch file that are relevant to these proceedings.

B. The request for a fresh affidavit of documents that includes fulsome, accurate and fully particularized Schedules A, B, and C.

[90] Ordinarily, a motion pursuant to Rule 30.06(b) is premised on an assertion that the responding party has not disclosed the full extent of their knowledge, information and belief relevant to the matter, or to an issue in the matter, that is their possession, control or power. Gamble v. Black & McDonald Ltd., 2020 ONSC 811 at para.3; Sarta v. Mazo, 2021 ONSC 5660 at para. 5.

[91] If a party establishes that there has been non-disclosure, the court may order that the responding party provide a fresh AOD that includes the missing relevant materials.

[92] In this motion, the Township requests an order that the plaintiff better organize his AOD so that it is easier for the Township to review and prepare for trial.

[93] In Grossman et al. v. Toronto General Hospital et al., at paras. 41-44, Justice Reid noted that in an action where most, if not all, of the relevant information is within one party’s knowledge, fair compliance with the discovery obligations is acutely necessary. As such, the rules require that a party candidly describe each document on production of the documents.

[94] I have reviewed the “Schedule A” of the plaintiff’s original AOD and supplemental AOD. The plaintiff’s original AOD lists and numbers the affidavits of Robert Dragicovic sworn March 19, 2018, Gordon Mason sworn February 28, 2018, David Maughan sworn February 27, 2018, Ralph Granger sworn February 20, 2020, Peter B. McLean sworn November 15, 2019, and Gordon Mason sworn June 20, 2020. Under each specific affidavit, the exhibits to those affidavits are individually named and numbered.

[95] In the supplemental AOD, “Schedule A” documents are described and individually numbered. I note that the e-mails are divided by the person they relate to, such as David Maughan, Megan Bonefant, and Jon Tyas. One of the numbered documents is called “e-mail communication with respect to this property and project architectural services”.

[96] Counsel for the Township readily conceded that he had no legal authority where Rule 30.06(b) had been used to obtain an order that a party re-organize their AOD in a format that was easier for the opposing party to review. That being said, I can conceive of circumstances where an AOD may be so poorly drafted that it amounts to no disclosure and defies the spirit of Rule 30.02.

[97] In my view, the Township has failed to satisfy me that a further and better organized AOD is required. While the AOD’s may not be set out in a chronological order, or in a way that the Township finds easy to use, it does number, name and organize the documents. I note that the documents themselves, do not appear to be voluminous.

[98] I further note that the Township did not bring a motion for a better organized AOD, prior to its examination of the plaintiff. Had the AOD been so poorly organized that it could not be reasonably used, I would have expected that this motion would have been brought earlier, prior to Mason’s examination.

[99] I note that with respect to Appendix A, further documents have now been provided. Further, with respect to Appendix B, it has been particularized and corrected in the supplemental AOD and now lists specific materials over which privilege is claimed.

[100] With respect to Appendix C, I am not satisfied that relevant documents have been omitted from this Appendix. In this motion, the Township cited three examples in Mason’s examination for discovery where he stated he had disposed of notes he had in relation to: (a) what the going rate for real estate was in 2015 (p.101); (b) his unsuccessful attempt to purchase crown land (p. 119); and (c) listing the property in 2016 to test the market (p. 326).

[101] I fail to see how Mason’s attempt to purchase Crown land is relevant to these proceedings.

[102] I fail to see how notes jotted down about the going rate for real estate in 2015 or the details of a 2016 real estate listing are relevant to these proceedings. At the time these questions were asked, counsel for the Township stated that the listing agreement was relevant to the issue of damages. I agree with the plaintiff, that the value of the property at different periods of time (and its connection to damages) would be determined by an expert appraiser, who has the expertise with respect to the valuation of property.

[103] In conclusion, I am not satisfied that plaintiff has established that a further AOD is required in these circumstances.

Conclusion

[104] For the reasons expressed above, the motion is dismissed.

Costs

[105] If the parties cannot agree as to the issues of costs related to this motion, the plaintiff shall serve and file costs submissions no longer than two pages in length within 14 days of this decision. The Township shall serve and file costs submissions, no longer than 2 pages in length, within 7 days of receipt of the plaintiff’s submissions.

The Honourable Madam Justice S.K. Stothart Date: November 3, 2023