COURT FILE NO.: CV-19-00614086-00CP

DATE: 20231107

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VECCHIO LONGO CONSULTING SERVICES INC

Plaintiff

• and –

APHRIA INC., VICTOR NEUFELD, and COLE CACCIAVILLANI

Defendants

Proceeding under the Class Proceedings Act, 1992

Joel P. Rochon, Peter R. Jervis, Douglas M. Worndl, Ronald Podolny and Juela Xhaferraj for the Plaintiff

Dana Peebles, Bryn Gray, Richard Lizius, and Amanda Iarusso for the Defendants

HEARD: October 24, 2023

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] Pursuant to the Class Proceedings Act, 1992,[^1] Vecchio Longo Consulting Services Inc. sues Aphria Inc., which is an “issuer” under the Ontario Securities Act,[^2] and the Defendants Victor Neufeld and Cole Cacciavillani, who are directors and officers of Aphria. The action is with respect to misrepresentations in the primary and security market for securities.[^3] The alleged misrepresentations concerned: (a) what is known as the “Nuuvera Transaction”; and (b) what is known as the “LATAM Transaction”.

[2] Now before the court is a refusals motion. The refusals chart is set out as Schedule “A” to these Reasons for Decision. On this motion, Vecchio seeks:

a. production (in whole or in part) of the report of the Special Committee of Aphria’s Board of Directors to investigate allegations relating to the LATAM Transaction or, in the alternative, answers to questions about facts contained in the Report;

b. production of three legal opinions obtained by Aphria as part of the due diligence process in the LATAM transactions; and,

c. answers to questions concerning the lack of accounting for the cannabis inventory harvested in Jamaica in 2018 that was provided for inspection to journalists in early 2019, which cannabis inventory apparently disappeared shortly thereafter.

[3] Vecchio’s Refusals motion was argued on October 24, 2023. At that time, I issued the following Endorsement:

1. For written reasons to follow, the Plaintiff’s motion is dismissed with costs to the Defendants fixed (as agreed) at $15,000, all inclusive, payable forthwith.

2.As I will explain in my written reasons, I do not agree with all of the Defendants’ arguments in its factum, but I do agree that: (a) the information sought by the Plaintiff about the Special Committee’s Report is subject to lawyer-client privilege and also litigation privilege; and (b) the privilege has not been waived on fairness grounds, incomplete picture grounds, or any other ground.

3. I also agree with the Defendants that the three due diligence opinions from the law firms in Argentina, Columbia and Jamaica about the legality of the revenue being generated from the marijuana licences and the compliance of those businesses with local law are: (a) privileged from disclosure; and (b) the privilege was not waived because of the due diligence defence, on fairness grounds, incomplete picture grounds or any other ground. I draw a distinction between these three due diligence opinions and the three regulatory opinions required by the TSX, which three opinions have already been disclosed in this litigation.

4. I also have some doubt about whether the three due diligence opinions are even relevant given that the three regulatory opinions have been produced and given that foreign law will eventually be proven by expert witnesses qualified to opine about the marijuana law and corporate law of Argentina, Columbia, and Jamaica.

5. Finally, in my opinion, the Defendants’ refusals with respect to the truckload of apparently missing marijuana in Jamaica were justified on grounds of relevancy and proportionality.

[4] What follows are my written Reasons for Decision.

B. Procedural Background

[5] On February 7, 2019, Vecchio commenced this securities class action. The action alleges that Aphria Inc. and certain of its officers and directors, Messrs. Neufeld and Cacciavillani made material misrepresentations in Aphria’s public disclosure concerning the company’s acquisitions of cannabis cultivation and distribution companies in Europe and Latin America in 2018. When the truth was revealed about: (a) the nature of these acquired foreign companies and (b) Aphria insiders’ previously undisclosed involvement in these acquisitions, Aphria’s stock price suffered a significant decline causing harm to Aphria’s shareholders.

[6] On August 6, 2021, the action was certified as a class action.[^4]

[7] On September 6, 2022, Vecchio delivered an Amended Fresh as Amended Statement of Claim.

[8] On April 4, 2023, the parties agreed on a Discovery Plan. Under the plan, Aphria agreed to produce all documents produced in parallel US litigation or to otherwise provide a reason for refusing to do so.

[9] On May 30, 2023, the Aphria Defendants delivered their Statement of Defence. In its defence, the Aphria Defendants rely on a due diligence defence with respect to the LATAM Transaction as follows:

72. Aphria undertook appropriate due diligence on its investment, including but not limited to the fact that various directors and officers of Aphria travelled to Colombia, Jamaica, and Argentina to investigate the assets, and its retainer of Cormark, after the Board approved management’s request to move forward, to provide a fairness opinion on the proposed transaction.

73. With respect to the 52-109 Certifications made by the Defendant Neufeld (and by the CFO Merton), filed on August 1, 2018 (for FY/2018) and on October 12, 2018 (for Q1/2019), they acted in the honest belief that those statements presented fairly in all material respects as to the financial condition of Aphria and the DC&P and ICFR compliance by Aphria with respect to the LATAM Transaction, and that those representations were the result of appropriate due diligence and reasonable investigations, and rely on s.138.4(6) and (7) of the OSA. Further with respect to these non-core documents, they plead that they had no knowledge or imputed knowledge of any misrepresentation within the meaning of s. 138.4(1) of the OSA when the documents were issued.

74. With respect to the April 25, 2018 Press Release announcing Aphria’s Corporate Governance Initiatives, which was a non-core document, the Defendants plead that it contained no untrue statement of material fact, and in the alternative, that they had no knowledge or imputed knowledge of any misrepresentation within the meaning of s.138.4(1) of the OSA when that document was issued.

75. If necessary, the Defendants Neufeld and Cacciavillani plead the statutory cap on damages with respect to any actionable misrepresentation, so found, in any Impugned Document (LATAM), pursuant to s.138.7(1) of the OSA.

[10] On June 8, 2023, Vecchio delivered its Reply pleading.

[11] In June 2023, examinations for discovery of the Defendants were completed subject to the Undertakings and Refusals.

[12] On July 25, 2023, there was a case management conference. I scheduled a Refusals Motion to complete the interlocutory stage of the action. The scheduling of the Refusals Motion was without prejudice and leave was granted to Vecchio to set the action down for trial.

[13] On September 29, 2023, Vecchio brought the Refusals Motion. Its motion was supported by:

a. affidavits dated October 6, 2023 and October 14, 2023 of Normelia Miranda. Ms. Miranda is a litigation law clerk at Rochon Genova, LLP, Class Counsel.

b. affidavit dated September 29, 2023 of Juela Xhaferraj. Ms. Xhaferraj is an associate lawyer at Rochon Genova, LLP, Class Counsel.

[14] On October 6, 2023 and on October 20, 2023, the Aphria Defendants delivered a Responding Motion Record and a Supplementary Responding Motion Record. The Aphria Defendants relied on:

a. affidavits dated October 5, 2023 and October 20, 2023 of Virginia Fletcher. Ms. Fletcher is a law clerk at McCarthy Tétrault LLP, counsel for the Defendants, Aphria Inc., Victor Neufeld, and Cole Cacciavillani.

b. affidavit dated October 6, 2023 of Peter Griffin. Mr. Griffin is counsel at Lenczner Slaght LLP. In December 2018, the law firm was retained by Aphria to assist a Special Committee to conduct an investigation with respect to a short-seller’s report released on December 3, 2018.

c. affidavit dated October 5, 2023 of Carl Merton. In December 2015, Mr. Merton became the Chief Financial Officer (“CFO”) of Aphria Inc.

[15] On October 6, 2023, Class Counsel wrote to Aphria’s counsel to bring to its attention a document filed in In re Aphria Inc. Sec. Litigation, docket number 1:18-cv-11376-GBD-JW, which is a parallel proceeding in the United States, which refers to Special Committee documents.

[16] On October 10, 2023, Aphria Counsel’s wrote to Class Counsel advising that:

… Aphria’s US counsel is continuing their review of documents relating to issues raised in document #231. If and when Aphria’s US counsel produces any non-privileged Special Committee documents in that action, we will review them, and produce to you any relevant documents.

C. Facts

[17] For present purposes of Vecchio’s Refusal Motion, the pertinent facts are set out below.

1. The LATAM Transaction Refusals

[18] Aphria is a cannabis company incorporated under the Ontario Business Corporations Act. Its shares formerly traded on the Toronto Stock Exchange (“TSX”) and on the New York Stock Exchange (“NYSE”). (In May 2021, Aphria became a wholly owned subsidiary of Tilray Brands Inc., and its shares are no longer publicly traded.)

[19] On January 29, 2018, Aphria announced that it was purchasing the shares of Nuuvera Inc., a public cannabis company for approximately $485 million. The transaction closed in March 2018.

[20] In the winter and fall of 2018, Aphria entered into a transaction that came to be known as the “LATAM Transaction.” This transaction involved acquiring cannabis industry companies that had operations and interests in Latin America in Argentina, Colombia, and Jamaica. To pay for the acquisition, Aphria would issue approximately 15.7 million shares with a value of about $274 million.

[21] Before it announced the LATAM Transaction to the public, as part of its due diligence process, Aphria obtained opinions from law firms in each country. The local legal counsels were asked to confirm the validity of the licenses and marijuana growing agreements in each country, and to confirm that for each of the target companies, the acquisitions were in compliance with local laws and regulations.

[22] In July 2018, local counsel from Argentina, Colombia, and Jamaica reported to Aphria about their respective assignments. Aphria considered the reports to be legal advice and to be privileged advice on the legal requirements to grow cannabis in Argentina, Columbia, and Jamaica.

[23] On July 17, 2018, in a press release, Aphria announced the LATAM Transaction.

[24] There was to be an issuance of shares in the primary market, and Aphria requested approval for the LATAM Transaction from the TSX. This regulator required Aphria to deliver legal opinions from local counsel in each of Argentina, Jamaica, and Colombia. The opinions were to opine on the legality of the operations of the LATAM companies. The legal opinions were to be addressed to the TSX.

[25] Aphria asked its local counsel in Argentina, Columbia, and Jamaica to prepare the opinions requested by the TSX. Drafts were shared with the TSX. The opinions were revised based on the TSX’s comments, and the final versions were provided to the TSX in September 2018. The opinions indicate that the LATAM entities were subject to restrictions with respect to the sale of cannabis.

[26] Pausing here in the narrative, the TSX Opinions have been produced in this Action.

[27] Returning to the narrative, the LATAM Transaction closed on September 28, 2018.

[28] On November 30, 2018, the last trading day before the weekend, Aphria’s share price was $10.51.

[29] On December 3, 2018, two investment firms, Hindenburg Research and Quintessential Capital Management issued a Report: Aphria: A Shell Game with a Cannabis Business on the Side. The release of the Report was accompanied by a presentation by Gabriel Grego, Quintessential Capital Management’s principal, at a short sellers’ conference. The conference was broadcast on YouTube. The presentation was called “The Black Hole”.

[30] The Hindenburg-Quintessential Report and the presentation revealed among other things that: (a) the assets underlying the LATAM Acquisition had been acquired by one Andy DeFrancesco; (b) the assets were then purchased by Canadian shell companies under the control of Mr. DeFrancesco and of Aphria insiders, including Messrs. Neufeld, Cacciavillani, and John Cervini; (c) the purchasers attempted to cover up their ownership and control of the shell companies; (d) the shell companies agreed to be acquired by Scythian Biosciences Corp, which then sold the companies to Aphria at a large markup; (e) Mr. DeFrancesco and the Aphria insiders received cash and Scythian shares and Scythian got cash and Aphria shares; (f) Aphria acquired assets worth far less than their purchase price; and (g) the nature, extent and calibre of the operations of the LATAM assets were vastly overstated.

[31] On December 3, 2018, following the Hindenburg-Quintessential Report, on heavy trading volume, Aphria’s share price fell to $7.60. On December 4, 2018, the price fell to $5.99. There was a drop in Aphria’s market capitalization of approximately 43% or approximately $1.13 billion.

[32] Between December 4 and 7, 2018, in response to the Hindenburg Report, law firms in the U.S. announced the commencement of class actions.

[33] On December 6, 2018, Aphria announced that its Board of Directors had appointed a Special Committee of independent directors to review the LATAM acquisition. The committee was comprised of independent directors, Shlomo Bibas, John Herhalt, and Tom Looney. Messrs. Herhalt, Bibas, and Looney are not lawyers. The Special Committee’s mandate was to review the allegations in the Hindenburg-Quintessential Report. The Mandate stated:

WHEREAS the Company is aware of short-seller reports, including ones released on December 3, 2018 and December 6, 2018 (the “Reports”);

AND WHEREAS the Board of Directors (the “Board”) has determined to form a special committee of the Board to facilitate its review of the Reports and the allegations contained therein and raised by the Reports (such review process, the “Review Process”);

NOW THEREFORE BE IT RESOLVED THAT:

Establishment of the Special Committee

1. A committee of the Board, to be known as the Special Committee, is hereby constituted for the following purposes:

(a) to oversee the Review Process, including the conduct of such Review Process; and (b) to report to the Board regarding the Review Process, and to make such recommendations as the Special Committee deems advisable or as the Board may request on any matter relating to the Review Process.

Powers of the Special Committee

4. The Special Committee is hereby authorized and empowered to:

(a) oversee the Review Process, including the conduct of the Review Process and report to the Board regarding the Review Process;

(b) supervise and instruct management and the Company’s professional advisors in the conduct of the Review Process, and establish such procedures as it considers necessary or advisable for the efficient and effective conduct of the Review Process;

(c) retain at the Company’s expense such professional advisors as the Special Committee considers appropriate, including financial advisors and/or independent legal counsel of its choosing to assist it with respect to its duties and responsibilities and to determine the remuneration of such advisors; and

(d) take such other steps and do such other things as it, in its discretion, considers to be necessary, appropriate or incidental to the foregoing.

5. The Special Committee is hereby authorized to meet with any and all persons, including officers, employees and directors of the Company, and legal, accounting, financial and other advisors and consultants to the Company and the Board as the Special Committee may deem necessary or desirable in connection with its mandate, and to invite such persons as it considers necessary or desirable to attend meetings of the Special Committee.

[34] On December 7, 2018, the Special Committee retained Peter Griffin of Lenczner Slaght LLP to advise it with respect to its investigation. The engagement letter with Lenczner Slaght stated:

The Special Committee of the Board of Directors of Aphria Inc.

Attention: John Herhalt, Shlomo Bibas and Thomas Looney

Dear Sirs

RE: Engagement Letter

1. Description of The Mandate

You have retained us to advise the Special Committee with respect to its review and investigation of allegations contained in certain short seller reports directed at recent transactions conducted by Aphria Inc. The full scope of our engagement will be defined by the evolution of the allegations and what the Special Committee directs, from time to time, as to our involvement and assistance.

Attached as Schedule “A” to this engagement letter is our preliminary plan and recommendation to the Special Committee as to how to proceed with the review and investigation.

2. Instructions

We will accept instructions for this engagement from John Herhalt, Shlomo Bibas and Thomas Looney in connection with this matter.

3. Staffing

Unless you instruct us otherwise, our staffing of this matter will be to draw on the necessary resources of the firm in order to handle this matter properly. If it is appropriate to do so, we will involve different lawyers, articling students, legal assistants, law clerks, law students, our research director, research librarians and technical specialists as may be required.

Most of the work will be performed or supervised by myself (a partner in this firm). I will be assisted by Shara Roy and Chris Trivisonno in this firm. However, we reserve the right to assign other lawyers in our firm to perform legal services if in our judgment that becomes necessary or desirable.

9. Independent Legal Advice

You may wish to have this agreement reviewed by another lawyer.

[35] As described by Mr. Griffin, the law firm conducted witness interviews, and engaged in a detailed legal analysis. It worked with an accounting firm and an appraisal firm. No steps were taken in the investigation other than those that Lenczner Slaght led or directed.

[36] On December 14, 2018, Koskie Minsky LLP as putative Class Counsel commenced a proposed class action against the Aphria Defendants.

[37] On December 27, 2018, Aphria announced that Mr. Neufeld was being replaced as Chair of the Aphria board.

[38] On January 11, 2019, Aphria announced that Messrs. Neufeld and Cacciavillani would be transitioning out of their executive roles with Aphria in the coming months but that they would remain on the Board of Directors.

[39] On January 14, 2019, Siskinds LLP, as putative Class Counsel commenced a proposed class action against the Aphria Defendants.

[40] On February 7, 2019, Rochon Genova LLP commenced a proposed class action on behalf of Vecchio against the Aphria Defendants and the underwriters., who had been involved in the distribution of shares.

[41] On February 13, 2019, Lenczner Slaght delivered an oral report, with its accompanying PowerPoint presentation, on behalf of the Special Committee, to the full Aphria Board of Directors.

[42] On February 15, 2019, by a Press Release, Aphria announced to the public the conclusion of the Special Committee's review of the LATAM Transaction. The announcement disclosed that several non-independent directors of the Company had conflicting interests that were not fully disclosed to the board of directors. On the same day, Aphria announced the resignation of Messrs. Cacciavillani, Neufeld, and Cervini from their directorships and executive positions effective March 1, 2019. Aphria also announced that it would adopt new corporate governance and management practices.

2. The Mystery of the Missing Marijuana

[43] To understand the controversy about refused questions about 2,400-2,500 kg of marijuana, it is important to keep in mind that the Class Period for this certified class action is January 29, 2018 to December 3, 2018.

[44] Within the class period, on December 4, 2018, the day after the release of the Hindenburg-Quintessential Report, Aphria issued a press release entitled: “Aphria Unequivocally Stands Behind its LATAM Operations.” The press release stated: “Marigold’s cultivation farm is operational and has harvested approximately 2,500 kg of cannabis to date.”

[45] In December 2018 – January 2019, independent analysts and journalists from Scotiabank, Haywood, and Bloomberg went to Latin America and they each conducted separate analysis of the LATAM Transaction assets. Both the Haywood and the Bloomberg reports refer to 2,500 kg of cannabis as part of the inventory of Aphria’s Jamaican subsidiary.

[46] In its Statement of Defense, the Aphria Defendants plead reliance on “independent market analysts (Scotiabank and Haywood) and journalists (Bloomberg News) whom they claim, “each conducted a separate analysis of the LATAM assets in December 2018-January 2019.” They plead that these analysts and journalists “concluded that Aphria had purchased real, viable, and valuable assets in Latin America.”

[47] On July 29, 2019, Aphria issued a press release entitled: “Aphria Inc’s Jamaican Subsidiary, Marigold, Receives Retail Herb House Licence.” The subtitle stated: “Sensi Medical Cannabis House to open in Kingston, Jamaica Inventory at Opening to Exceed 2,700 kgs.” The press release contains quotes from Aphria’s new CEO, Irwin D. Simon. The text of the press release stated: “Marigold Projects cultivation farm is fully operational, and inventory at opening will exceed 2,700 kgs.”

[48] During the examinations for discovery, Class Counsel asked Aphria’s representatives a series of questions concerning the existence of the 2,500 kg of marijuana during the Class Period. Aphria undertook to answer these questions, including to produce all of the formal inventory records of Marigold for the Class Period.

[49] Class Counsel also asked for Marigold’s records and financial statements for 2017, 2018, and 2019, and for information about whether this cannabis was recognized as inventory or as sold or destroyed, in financial statements issued for 2018 to 2021.

[50] Aphria agreed to produce Marigold’s records for the time of the Class Period but refused to produce records outside the Class Period. Aphria’s position was that these records were not relevant and that the request was in any event disproportionate having regard to what it had already undertaken to disclose.

[51] The Plaintiff says that it needs answers about the marijuana to either: (a) prove that the Haywood and Bloomberg statements were false; or (b) demonstrate that Aphria did not comply with IFRS (International Financial Reporting Standards) and that Aphria’s DC&P (Disclosure Controls and Procedures) were deficient.

D. Discussion and Analysis

1. Evidentiary Privileges

[52] In the immediate case, the Aphria Defendants rely on solicitor and client privilege and on litigation privilege as the justification for their refusal to answer questions about the Special Committee Report and about the three opinions of the law firms in Argentina, Columbia, and Jamaica.

[53] Solicitor-client privilege concerns communications between a lawyer and his or her client. It is a fundamental right and a substantive rule of law.[^5] To ensure public confidence in the legal system and the effectiveness of the privilege, solicitor-client privilege approaches an absolute right, rather than one that is decided on a case-by-case basis.[^6]

[54] To qualify for solicitor-client privilege, a communication must be: (1) between a client and his or her lawyer who must be acting in a professional capacity as a lawyer; (2) given in the context of obtaining legal advice; and (3) intended to be confidential.[^7] For the solicitor-client privilege to attach, the lawyer must be acting in his or her role of a lawyer, and solicitor-client privilege does not protect advice on purely business matters even where the advice is provided by a lawyer.[^8]

[55] Under the privilege known as the litigation privilege, oral or written communication between a lawyer and a client or between a lawyer and a third party made exclusively or for the dominant purpose of the client’s contemplated or pending litigation are privileged.[^9] For the litigation privilege, there will be an oral or written communication between a lawyer and a client, or between a lawyer and a third party made exclusively or for the dominant purpose of the client’s contemplated or pending litigation.[^10]

[56] The burden of showing that a document is subject to litigation privilege lies on the party asserting the privilege.[^11] The determination of whether litigation is reasonably contemplated and the dominant purpose of the document created is a fact-based inquiry and will depend on the circumstances of each case.[^12]

[57] An evidentiary privilege may be waived. A waiver of privilege may be express or implied. Implicit waiver may arise in two circumstances: (i) waiver by disclosure – once the privileged communication has been disclosed, the privilege attached to it is said to be lost; or (ii) waiver by reliance – by pleading or otherwise relying upon the privileged communication as part of a substantive position taken in the legal proceedings.[^13]

[58] Privilege may be waived intentionally or inferentially or as a matter of fairness.[^14] In S & K Processors Ltd. v. Campbell Avenue Herring Producers Ltd.,[^15] which was followed in Ontario in Browne (Litigation Guardian of) v. Lavery,[^16] Justice McLachlin, as she then was, stated:

Waiver of privilege 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 the privilege. However, waiver may also occur in the absence of the intention to waive, where fairness and consistency so require. Thus, waiver of privilege as to part of a communication will be held to be a waiver as to the entire communication.

[59] Lawyer-and-client privilege is waived when a litigant makes an issue in the litigation whether it relied on legal advisers, in which case the presence or absence of legal advice would, in turn, be relevant. In these cases, privilege may be impliedly waived because it would be unfair and inconsistent for a party to raise the issue of its reliance of legal advice and then to refuse to disclose the particulars of that advice on the grounds of privilege.[^17]

[60] For the privilege to have been waived, the party must utilize the presence or absence of legal advice as a material element of his or her claim or defence; for a deemed waiver, there must be both: (1) the presence or absence of legal advice being relevant to the existence or non-existence of a claim or defence; and (2) the party who received the legal advice making the receipt of the advice an issue in the claim or defence.[^18]

[61] When a party seeks to overcome an evidentiary privilege, the onus is on him or her to establish that the communication ought to be compelled from the person asserting the privilege.[^19]

[62] Courts will decline to review solicitor-client documents to ensure the privilege is properly asserted unless there is evidence or argument establishing the necessity of doing so to fairly decide the issue.[^20]

2. The Lenczner Slaght LLP Report to the Special Committee

[63] The Aphria Defendants refused to produce the Lenczner Slaght Report to the Special Committee on the basis that: (a) the report was privileged either as solicitor and client privilege or as litigation privilege; and (b) these privileges had not been waived.

[64] I agree that in the immediate case both solicitor and client privilege and litigation privilege apply to the report prepared by Lenczner Slaght for the Special Committee. It was the law firm that was retained and Mr. Griffin and his associate lawyers at the firm were acting in a professional capacity as a lawyer. They were providing legal advice. And the normal rules of lawyer-client confidentiality and privacy applied. These are precisely the circumstances that engage solicitor and client privilege.

[65] Aphria did not hire Mr. Griffin and his law firm as some sort of private investigator to determine the events of the LATAM Transaction. The firm was hired to do legal work and they were not hired to provide advice on purely business matters. In a climate in which class actions had started and were being started, the law firm was retained because serious allegations of impropriety under the Securities Act had been and were being alleged against Aphria.

[66] Mr. Griffin testified that the work of Lenczner Slaght Report included mixed findings of fact and law, leading to legal advice and recommendations. The engagement required an investigation of the facts, which is what forensic legal work always requires. Determining what are the relevant facts and analyzing the gathered facts requires legal skill, analysis, and judgment.

[67] A leading case on the issue of whether a lawyer’s services are outside of his or her normal lane of providing legal advice is Gower v. Tolko Manitoba Inc.[^21] In this case, the Manitoba Court of Appeal held that a lawyer who had been retained to investigate and advise an employer about a sexual harassment complaint against one of its employees was engaged in the role of a lawyer, which role may include making a factual investigation.[^22] The Court appreciated that had the lawyer been retained only for the purposes of making an investigation, then her report would not have been privileged. However, in the Gower case, the lawyer’s retainer made it clear that hers was not just an investigatory role, but rather the lawyer’s investigation was for the purposes of providing legal advice and services. The Court appreciated that factual investigation is a fundamental part of a lawyer’s legal services. Justice Steel stated:

19. […] the communication must be connected to obtaining legal advice, but legal advice is not confined to merely telling the client the state of the law. It includes advice as to what should be done in the relevant legal context. It must, as a necessity, include ascertaining or investigating the facts upon which the advice will be rendered. Courts have consistently recognized that investigation may be an important part of a lawyer's legal services to a client so long as they are connected to the provision of those legal services. As the United States Supreme Court acknowledged: “The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant.”

[68] In some sort of sophistry, the Plaintiff in the immediate case argued that the report was not a legal report of Lenczner Slaght but was the Special Committee’s Report of its own factual findings and therefore not privileged. This argument conflates a lawyer’s duty to keep confidences and the client’s privilege to make its communications with its lawyer privileged from disclosure in litigation. It is true that Lenczner Slaght must have communicated the facts it discovered in its investigation to the Special Committee but that does not change that a communication intended to be confidential between a client, Aphria, and its lawyer, Lenczner Slaght, which was acting in a professional capacity as a lawyer was communicating information in the context of providing legal advice. The communication was privileged, and the Plaintiff was at liberty to question the Aphria Defendants about the facts and events associated with the LATAM Transaction.

[69] Lenczner Slaght’s work is also subject to litigation privilege. As noted above, the existence of litigation privilege is a question of fact depending upon the circumstances of the particular case and whether those circumstances reveal that the dominant purpose of the lawyer’s work was in anticipation of litigation.

[70] The capital market value of Aphria’s shares had taken a billion-dollar scalping, and Aphria knew it was being sued when it constituted its Special Committee. The allegations in the Hindenburg Research and Quintessential Capital Management Report that caused the over a billion-dollar loss suggested serious violations of the Securities Act. Litigation was beyond being anticipated, litigation had already occurred and was occurring. American class actions had started before, at, and during the law firm’s retainer and the class action firms in Canada quickly got on the bandwagon. Aphria purposefully retained a law firm that had considerable experience investigating and litigating securities law disputes.

[71] The mandate of the Special Committee involved obtaining legal advice about the causes of the lawsuits against Aphria. As in R v. Husky Energy Inc.,[^23] when a company initiates an internal investigation with impending litigation in mind, the timing and circumstances of the creation of the investigation create litigation privilege. Responding to the incoming litigation projectiles was the dominant purpose of Lenczner Slaght’s retainer.

[72] I find as a fact that Lenczner Slaght’s report to the Special Committee and to the Board of Directors had the dominant purpose of responding to Aphria’s already pending litigation.[^24] The report also had other purposes and so its dominant purpose was not its exclusive purpose but the other uses, which importantly, were non-dominant purposes.

[73] There was no waiver of either the solicitor-client communication or of the litigation privilege.

[74] Vecchio submits that there was a waiver because of the Discovery Plan in which Aphria agreed to produce documents produced in the parallel U.S. class action. There is nothing to this submission. This undertaking was with respect to non-privileged documents.

[75] Vecchio submits that there was a waiver because Aphria issued a Press Release on February 15, 2019 disclosing some factual findings arising from the work of the Special Committee.

[76] Once again, there was no waiver arising from the circumstance that Aphria disclosed as a part of its reporting and disclosure obligations under securities law facts discovered by Lenczner Slaght’s investigation.

[77] There is certainly no unfairness or circumstances of Vecchio being told an incomplete picture because Aphria asserted solicitor-client and litigation privilege about Lenczner Slaght’s report to the Special Committee. Insofar as the law firm expressed a legal opinion, it obviously was privileged information. Insofar as the law firm expressed its factual findings of an investigation, the information was hearsay information. Vecchio may make its own investigations and it may inquire about what the Defendants did or did not do and what they knew or did not know through the normal discovery process without the aid of Lenczner Slaght’s privileged communications.

[78] There was nothing misleading about the information provided in the February 15, 2019 Press Release and the information disclosed is largely favourable to Vecchio’s misrepresentation action against the Defendants. Whatever additional information Vecchio required, it could ask for directly during the examinations for discovery.

[79] Vecchio had the right, and indeed exercised that right, during the examinations for discovery to ask Aphria, and Messrs. Neufeld and Cacciavillani what was done or not done, what was known, and what they witnessed about the LATAM Transaction. The facts whether or not they were referenced in Lenczner Slaght’s report were subject to disclosure. Vecchio does not need to circumvent the solicitor-client or litigation privilege to get answers; it could and did examine the two individual Defendants and the representative of the corporate Defendant about the facts.

[80] Vecchio had the opportunity to ask factual questions as to personal or corporate knowledge, independent of the opinions of Lenczner Slaght or what Lenczner Slaght may have said about its investigation. Vecchio had nine days of discovery of the Defendants, during which it used the numerous shareholding productions to question the defendants directly, under oath, as to the insider holding issue and about the value of the assets comprising the LATAM Transaction.

[81] For the above reasons, I conclude that the Defendants’ refusal to answer questions about the Lenczner Slaght LLP Report to the Special Committee was justified.

3. The Legal Opinions of the Argentina, Columbia, and Jamaica Law Firms

[82] Aphria claims solicitor and client privilege with respect to the three due diligence legal opinions that Aphria obtained from law firms in Argentina, Columbia, and Jamaica. Those opinions were about the legality of the operation of the marijuana businesses of the corporations being acquired. Conversely, Aphria does not claim privilege with respect to the legal opinions provided by those same law firms in Argentina, Columbia, and Jamaica to the TSX. Those opinions are also about the legality of the marijuana businesses of the corporations being acquired in the LATAM Transaction.

[83] The three due diligence legal opinions for which Aphria claims privilege were obtained as a part of Aphria’s due diligence for the LATAM Transaction. The law firms were retained to do legal work opining on domestic law. The communications from the law firm satisfy the prerequisites for solicitor and client privileged communications.

[84] That solicitor and client privilege associated with the due diligence legal opinions was not waived by the circumstance that the TSX required opinions about compliance with domestic law as a matter of regulatory compliance. Naturally enough, Aphria engaged the same law firms to provide those opinions to the TSX. The first engagement involved confidential solicitor and client communications that satisfied the circumstances for privilege, but the second engagement did not. The second retainer did not involve communications intended to be confidential.

[85] The TSX Opinions were created at the insistence of the TSX, to answer very specific questions. These opinions stand apart from the LATAM Transaction due diligence opinions obtained by Aphria for its own purposes. This is the same situation as in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co.[^25] where the Court held that a defendant that produced an opinion that OSFI (a government regulator) had required it to obtain had not thereby waived privilege over other legal opinions concerning the incorporation of the defendant. The Court stated there that the OFSI opinion stands on its own. The same can be said of the opinions presented to the TSX in the immediate case.

[86] Further, apart from the fact that there were three due diligence opinions, the substantive message or content of the three due diligence legal opinions is not relevant and need not be disclosed in this litigation, and Aphria could have justified its refusal to produce the opinions on grounds of non-relevance.

[87] Vecchio’s argument about the relevance of these opinions is that the marijuana operations in Argentina, Columbia, and/or Jamaica were without value because they could not lawfully generate revenue because of non-compliance with domestic law. The truth of that proposition, however, will not be determined by the due diligence opinion letters. Nor will it be proven by the opinions provided to the TSX. Foreign law is a matter of fact to be proven through the testimony of a properly qualified expert.[^26] In other words, there is no unfairness, no incomplete disclosure, no hiding of facts in the immediate case, and no waiver of privilege in the immediate case, and Vecchio’s inquiry about the quality of the work of the law firms in Argentina, Columbia, and Jamaica appears to be irrelevant.

[88] For similar reasons, I do not see how these three opinions are relevant to the defendants’ due diligence defence. And I do not see how it follows from the Defendants’ pleading due diligence, that they waived the solicitor and client privilege associated with the three legal opinions.

[89] While the Aphria Defendants did plead due diligence, it did not rely upon the substance of these legal opinions. At best, it relied on the fact that it did undertake due diligence. The Statement of Defence refers to the financial and investigative aspects of the defendants’ due diligence including: (1) directors and officers travelling to Colombia, Jamaica, and Argentina to investigate the assets; (2) retaining Cormark Securities Inc. to provide a fairness opinion; (3) conducting “considerable diligence including site visits and a third party valuation”; and (4) making a “reasonable investigation” of the scope and value of the assets. Aphria did not plead reliance on the particular legal advice it received from the law firms in Argentina, Columbia, or Jamaica.

[90] Moreover, in any event, “waiver does not occur because the party discloses that he or she received legal advice, nor does it occur because the party admits that he or she relied on the legal advice; it occurs because the party chooses to use the legal advice as a substantive element of his or her claim or defence…”,[^27] which is not the situation in the immediate case.

[91] For the above reasons, I conclude that the Defendants’ refusal to answer questions about the legal opinions of the Argentina, Columbia, and Jamaica Law Firms was justified.

4. The Missing Marijuana

[92] A summary of the story about the missing marijuana is that during the class period some capital market analysts investigated the LATAM Transaction and they went to see the cannabis operations of the Jamaica acquisition. They saw 2,400-2,500 kg of marijuana. The value of this much weed is $7 million.

[93] The mystery is that there is no mention of $7 million of marijuana in the financial statements of the Jamaican marijuana company. Vecchio asked the Aphria Defendants why there was no evidence of any revenue from the 2,500 kg of marijuana in the financial statements. The Aphria Defendants were dumbfounded. It was a mystery to the Aphria Defendants.

[94] During the examinations for discovery, the Aphria Defendants undertook to provide information to solve the mystery by providing what information they had for the class period. They, however, on the grounds of relevancy and proportionality declined to provide information for the post class period.

[95] In my opinion, solving the mystery of the missing marijuana is an irrelevant distraction for both before and after the class period. In terms of materiality, i.e., whether the issue is a part of the lawsuit, Vecchio does not plead any misrepresentation about marijuana. The journalists confirmed the existence of marijuana. The Statement of Claim mentions the 2,500 kg of Cannabis reported in the Haywood and Bloomberg reports. The Aphria Defendants made no representations about what happened to the 2,500 kg of marijuana. The missing marijuana is not even a minnow-misrepresentation compared to the big whale-misrepresentations that are at the heart of Vecchio’s case.

[96] Put somewhat differently, assume the mystery of the missing marijuana was solved. It would not change the facts that 2,500 kg of marijuana existed but was not accounted for in the inventory or in the revenues of the Jamaican marijuana company.

[97] In any event, the reports by Haywood and Bloomberg which referenced this cannabis increased the value of Aphria shares (albeit outside of the Class Period, and outside of the Ontario Securities Act damages calculation period) by counteracting the information from the Hindenburg-Quintessential Report. As such, the statements by Hindenburg and Bloomberg could not have harmed the Plaintiff or contributed to their alleged damages.

[98] I agree with the Aphria Defendants that there is no foundation in the Statement of Claim (i.e., no materiality) for ordering answers or productions about the mystery of the missing marijuana. Aphria gave an undertaking to provide some information, which they are obliged to honour, but nothing more is required of Aphria.

[99] For the above reasons, I conclude that the Defendants’ refusal to answer questions about the missing marijuana was justified.

E. Conclusion

[100] For the above reasons, Vecchio’s motion is dismissed with costs to the Defendants fixed (as agreed) at $15,000, all inclusive, payable forthwith.

Perell, J.

Released: November 7, 2023

SCHEDULE “A” – QUESTIONS REFUSED BY THE DEFENDANTS

M: Questions from the examination for discovery of Carl Merton, the discovery representative of the Defendant Aphria Inc.

N: Questions from the examination for discovery of the Defendant Vic Neufeld

No.

Question

Question refused or taken under advisement

Defendants’ Position

Plaintiffs’ Position

1.

M 4396

To produce the whole report of the Special Committee in whatever form it takes, in particular, to produce: (a) the conclusions of the Special Committee, (b) the factual analysis of the Special Committee, (c) the factual findings of the Special Committee, (d) the recommendations of the Special Committee, (e) to the extent that the Special Committee recommended that Messrs. Neufeld and Cacciavillani be fired or asked to resign, the details of why that recommendation was made; and (f) in the alternative, if there are legal opinions expressed in the Special Committee Report that counsel believes should be redacted, then to redact those legal opinions and show them to Justice Perell so that he can decide whether all or part of the Special Committee Report should be produced.

Refused on the grounds of privilege.

Plaintiff seeks production of the Special Committee Report, but also proposed as a compromise, alternative relief (f) be agreed; namely, that Special Committee Report be produced with any legal advice redacted; with unredacted Report provided to Justice Perell for determination as to appropriateness of redactions, and whether the Report should be produced with some or all of the redactions removed.

2.

N 1421

[In the alternative to #1] With reference to Aphria Press Release dated February 15, 2019 (Discovery Brief Volume 5, Tab 19, page 190), what were the “conflicting interests in the [LATAM] Acquisition that were not fully disclosed to the Board.”

Refused on the grounds of privilege.

Question should be answered.

It seeks disclosure of relevant facts referred to in a Press Release, not legal advice.

3.

N 1496

With reference to the February 15, 2019 Press Release (Document 5(19), page 189), to provide a written direction to Deloitte and Touche, to produce to the Plaintiff its interview notes, records, and analyses and any report in connection with the Special Committee work that they did.

Refused on the grounds of privilege.

The documents should be provided. The Press Release indicates that Deloitte and Touche assisted the Special Committee as “independent forensic advisors”. There is no privilege attaching to the work that Deloitte and Touche performed for the Special Committee.

4.

N 1496

With reference to the February 15, 2019 Press Release (Document 5(19), page 189), to provide a written direction to Duff & Phelps to produce to the Plaintiff its interview notes, records, analyses and any report that it delivered in connection with its work for the Special Committee.

Refused on the grounds of privilege.

The documents should be provided. The Press Release indicates that Duff & Phelps assisted the Special Committee as “independent financial advisors”. There is no privilege attaching to the work that Duff & Phelps performed for the Special Committee.

No.

Question

Question refused or taken under advisement

Defendants’ Position

Plaintiff’s Position

1.

M 2577

With respect to the cannabis depicted in the photograph in the Bloomberg article (Discovery Brief Volume 19, Tab 19, page 195) having a bar code control tag dated September 1, 2018: (a) When was the depicted cannabis planted? (b) When was it harvested? (c) Under what licence was it planted and harvested? (d) When was it sold? (e) What is the strain of the depicted cannabis? (f) where is the sale of the cannabis recognized in the Aphria financial statements? (f) When and where was the depicted cannabis grown?

Refused on the grounds of relevance and proportionality

The Defendants plead reports by Bloomberg and Haywood which reference the Marigold cannabis. The Defendants plead that these reports are “contemporaneous market analysis” and are referred to in order to counter the pleaded misrepresentations regarding the LATAM Transaction. (Statement of Defense paras 87 and 88). This part of Question M2577 asks when and where was the 2500 kg of Marigold cannabis grown; was any or all of it sold, and how was it accounted for in Aphria’s financial statements.

2.

M 2577

(a) to produce the Marigold cannabis production and inventory records for the calendar years 2018 and 2019; (b) to produce the Marigold financial statements for the period covered by calendar years 2017, 2018, and 2019.

As above.

While the previous part of question M2577 seeks Aphria’s accounting of the Marigold Cannabis (as inventory and/or revenue), this part of the question seeks Marigold’s inventory documentation as it relates to the same cannabis including how Marigold accounted for it.

3.

M 2577

To advise if the approximately 2,500 kilograms of Marigold cannabis described by Haywood and Bloomberg were ever recognized as inventory and whether proceeds from the sale of this cannabis were ever recognized as revenue?

As above.

This part of question M2577 seeks an explanation of how the 2500 kgs to 2700 kgs of Marigold cannabis was accounted for in Aphria’s Financial Statements for the fiscal years 2018 (FY ending May 31, 2019), 2019 (FY ending May 31, 2020) and 2020 (FY ending May 31, 2021).

4.

M 2577

Further to the above, if the 2500 kilograms of cannabis described by Haywood and Bloomberg were accounted for as inventory and, or were recognized as revenue, to identify where in Aphria’s financial statements this accounting and revenue recognition is reflected; and if there was no such recognition of the 2500 kilograms of cannabis in Aphria’s financial statements, to confirm whether the cannabis was destroyed and if so to provide records of its destruction.

As above.

This part of Question 2577 addresses not only the question of how the 2500 kg of Marigold cannabis was accounted for in period financial statements but more specifically asks, if the cannabis was sold, where is it recognized as revenue, and if it was destroyed, to provide records of same.

5.

M 2927

Undertaking to advise where the 2,700 kilograms of cannabis that Mr. Simon discusses in the July 29, 2019 press release (Exhibit 12) are recognized in the period financial statements.

As above.

Exhibit 12 is a Press Release dated July 29, 2019 announcing developments with respect to Marigold. In it, CEO Simon, who replaced the defendant Neufeld, announced that Marigold had more than 2700 kg of cannabis in inventory. This press release followed the January 10 and 11 accounts by Haywood and Bloomberg which stated that they were shown 2500 kg of cannabis in Marigold’s inventory.

This question seeks an accounting of the 2500kg of Marigold cannabis inventory which was referred to by new CEO Simon in the press release.

No.

Question

Question refused or taken under advisement

Defendants’ Position

Plaintiff’s Position

1.

M 3576

M3844

To produce all legal opinions regarding the Colombian, Jamaican and Argentine cannabis regulatory regimes that were received by Aphria as part of its due diligence process in respect of the LATAM Transaction

Refused on the grounds of privilege

Questions 3576 and 3844 should be answered.

The evidence is that the three opinions Aphria produced from the three law firms that were provided to the TSX in September 2018 prior to closing the LATAM Transaction (“Pre-Closing Opinions”), addressed the same issues as the requested opinions received by Aphria from the same law firm as part of its Pre-July 17, 2018 LATAM Transaction due diligence (“Due Diligence Opinions”).

Any privilege over the Pre-Closing Opinions is waived because of 1) the pleaded due diligence defense; and 2) the disclosure of the Pre-Closing Opinions by the same law firms which were said to have addressed the same subject matter as the Due Diligence Opinions

[^1]: S.O. 1992, c. 6. [^2]: R.S.O. 1990, c. S.5. [^3]: The action is pursuant to s. 130, Part XXIII and s. 138.3, Part XXIII.1 of the Ontario Securities Act. [^4]: Vecchio Longo Consulting Services Inc. v. Aphria Inc., 2021 ONSC 5405. [^5]: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860; Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353; Canada v. Solosky, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821. [^6]: Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, affg (2003), 2003 CanLII 8701 (ON CA), 63 O.R. (3d) 97 (C.A.); Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445. [^7]: Wintercorn v. Global Learning Group Inc., 2022 ONSC 4576; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44; Gower v. Tolko Manitoba Inc., 2001 MBCA 11, [2001] M.J. No. 39 (C.A.); R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860. [^8]: R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565. [^9]: Zimmerman v. McNaull, 2021 ONSC 3436; Lizotte v. Aviva Insurance Co. of Canada, 2016 SCC 52; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44; Blank v. Canada (Minister of Justice), 2006 SCC 39; General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321 (C.A.); Susan Hosiery Ltd. v. Minister of National Revenue, 1969 CanLII 1540 (CA EXC), [1969] 2 Ex. C.R. 27 (Ex. Ct.); Wheeler v. Le Marchant (1881), 17 Ch. D. 675 at p. 681 (C.A.). [^10]: Badesha (Litigation guardian of) v. Haider, 2017 ONSC 1745; Panetta v. Retrocom Mid-Market Real Estate Investment Trust, 2013 ONSC 2386; Kennedy v. McKenzie, [2005] O.J. No. 2060 (S.C.J.); General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321 (C.A.); Blackstone v. Mutual Life Insurance Co. of New York, 1944 CanLII 92 (ON CA), [1944] O.R. 328 (C.A.). [^11]: Kennedy v. Toronto Hydro-Electric System Ltd., 2012 ONSC 2582, aff’g 2012 ONSC 1088 (Master); Brick Warehouse Corp. v. B. Gottardo Construction Ltd., [2010] O.J. No. 393 (S.C.J.); Mamaca (Litigation Guardian of) v. Coseco Insurance Co., 2008 CanLII 30312 (ON SCDC), [2008] O.J. No. 2508 (S.C.J.), leave to appeal refused [2008] O.J. No. 2508 (S.C.J.). [^12]: Badesha (Litigation guardian of) v. Haider, 2017 ONSC 1745; Ward v. Dominion of Canada General Insurance Co., [2008] O.J. No. 5845 (S.C.J.); Mamaca (Litigation guardian of) v. Coseco Insurance Co., 2007 CanLII 54963 (ON SC), [2007] O.J. No. 4899 (S.C.J.), leave to appeal refused 2008 CanLII 30312 (ON SCDC), [2008] O.J. No. 2508 (Div. Ct.); Allan v. CHC (Canada) Casinos Ltd. (2005) 2005 CanLII 31999 (ON SC), 77 O.R. (3d) 653 (S.C.J.). [^13]: Laliberté v. Monteith, 2021 ONSC 4133 (Div. Ct.); Leitch v. Novac, 2017 ONSC 6888; Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC), [2004] O.J. No. 4468 (S.C.J.). [^14]: Lepan v. Lofranco, 2023 ONSC 1766; Browne (Litigation guardian of) v. Lavery (2002), 2002 CanLII 49411 (ON SC), 58 O.R. (3d) 49 (S.C.J.); Glegg v. Smith & Nephew Inc., 2005 SCC 31, [2005] 1 S.C.R. 724 at para. 19. [^15]: 1983 CanLII 407 (BC SC), [1983] B.C.J. No. 1499 (S.C.). [^16]: (2002), 2002 CanLII 49411 (ON SC), 58 O.R. (3d) 49 (S.C.J.). [^17]: Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123; Zurich Insurance Co. v. Paveco Road Builders Corp., [2007] O.J. No. 5419 (S.C.J.); Philip Services Corp. (Receiver of) v. Ontario (Securities Commission), 2005 CanLII 30328 (ON SCDC), [2005] O.J. No. 4418 (Div. Ct.); Leadbeater v. Ontario (2004), 2004 CanLII 14107 (ON SC), 70 O.R. (3d) 224 (S.C.J.); Bank Leu AG v. Gaming Lottery Corp., [1999] O.J. No. 3949 (S.C.J.), aff’d [2000] O.J. No. 1137 (Div. Ct.); Froates v. Spears, [1999] O.J. No. 77 (Gen. Div.); Woodglen & Co. v. Owens (1995), 1995 CanLII 7070 (ON SC), 24 O.R. (3d) 261 (Gen. Div.); S & K Processors Ltd. v. Campbell Avenue Herring Producers Ltd., 1983 CanLII 407 (BC SC), [1983] B.C.J. No. 1499 (S.C.); Smith v. Smith, [1958] O.W.N. 135 (Master). [^18]: Canadian Appliance Source Inc. v. Utradecanada.com Inc., 2018 ONSC 2960, aff’g 2017 ONSC 4959 (Master); Roynat Capital Inc. v Repeatseat Ltd., 2015 ONSC 1108 (Div. Ct.); Leggat v. Jennings, 2015 ONSC 237; Trillium Motor World Ltd. v. General Motors of Canada Ltd., 2014 ONSC 1338 (Master.), aff’d 2014 ONSC 4894; Creative Career Systems Inc. v. Ontario, 2012 ONSC 649. [^19]: Laliberté v. Monteith, 2021 ONSC 4133 (Div. Ct.); Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC), [2004] O.J. No. 4468 (S.C.J.). [^20]: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 at para. 68. [^21]: 2001 MBCA 11. [^22]: For similar cases, see Royal Bank of Canada v. Société Générale (Canada), 2005 CanLII 36727 (ON SC), [2005] O.J. No. 4383 (S.C.J.); Hydro-One Network Services Inc. v. Ontario (Ministry of Labour), [2002] O.J. No. 4370 (C.J.); College of Physicians and Surgeons of British Columbia v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665, [2002] B.C.J. No. 2779 (C.A.). [^23]: 2017 SKQB 383. [^24]: Badesha (Litigation guardian of) v. Haider, 2017 ONSC 1745; Panetta v. Retrocom Mid-Market Real Estate Investment Trust, 2013 ONSC 2386; Kennedy v. McKenzie, [2005] O.J. No. 2060 (S.C.J.); General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321 (C.A.); Blackstone v. Mutual Life Insurance Co. of New York, 1944 CanLII 92 (ON CA), [1944] O.R. 328 (C.A.). [^25]: 1995 CanLII 7258 at paras. 40-42 (Ont. S.C.). [^26]: Centerra Gold Inc. v. Bolturuk, 2022 ONSC 1040; U.S.A. v. Mgbolu, 2015 ONSC 1273; Peng v. Zhu, 2009 CanLII 39494 (ON SC), [2009] O.J. No. 3171, 97 O.R. (3d) 277 at para. 35 (S.C.J.); Yordanes v. Bank of Nova Scotia (2006), 2006 CanLII 1777 (ON SC), 78 O.R. (3d) 590 (S.C.J.). [^27]: Creative Career Systems Inc. v. Ontario, 2012 ONSC 649.```