COURT FILE NO.: CV-19-139166 DATE: 2023-02-02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ALAN EDWIN BRAY Plaintiff

– and –

THE REGIONAL MUNICIPALITY OF YORK Defendant

Warren S. Rapoport and Lauren Rakowski, for the Plaintiff

Douglas Smith and Sarah Sweet, for the Defendant

HEARD: January 13, 2023

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] The Plaintiff, Alan Bray, brings this motion pursuant to Rule 36.04(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) to ask the Court to inspect documents to determine the validity of the Defendant’s claims for litigation and solicitor-client privilege.

Background Facts

[2] The Plaintiff sued the Defendant, the Regional Municipality of York (“York Region” or “the Region”), for damages to his property resulting from what he alleges is the negligent construction of the Bathurst Street extension (“the extension”) which was carried out in 2015-2016. The extension runs to the immediate east of Mr. Bray’s property. Mr. Bray alleges that the drainage plan associated with the extension was inadequate to prevent runoff from the roadway damaging his property. In particular, there is a 2-acre pond located on Mr. Bray’s property, which he alleges has been damaged by an accumulation of sediment and silt deposits from the run-off from the roadway coming on to his property.

[3] The Plaintiff commenced this action against York Region on February 11, 2019.

[4] The Statement of Claim was issued following two and one-half years of discussions between the parties relating to York Region’s remediation of the Plaintiff’s property.

[5] The Defendant’s Statement of Defence denies any negligence in the design or construction of the extension, which it argues was completed in accordance with the necessary studies and approvals.

[6] The Defendant provided an affidavit of documents claiming litigation privilege and/or solicitor-client privilege over 132 of the documents listed. The Plaintiff questioned these claims of privilege and sought production of the privileged documents.

[7] The parties cooperated to resolve most of these disputes. The Defendant agreed to disclose many of these documents to the Plaintiff’s counsel on a without prejudice basis. Certain documents were provided on a time limited “for counsel’s eyes only” basis on the condition that no copies be kept or notes or records of the documents be made. Some documents were not provided at all. Through this process the parties have been able to narrow the documents in dispute. The Plaintiff has conceded the privilege claim for many of the documents, and the Defendant has waived privilege or withdrawn its claim for privilege with respect to other documents.

[8] There remain 23 documents in dispute.

[9] The purpose of this motion is to ask the Court to review the 23 disputed documents pursuant to Rule 36.04(6) of the Rules to determine the validity of the Defendant’s claim for privilege.

[10] There are an additional 15 documents that the Plaintiff does not seek production of, but still seeks the Court’s assessment of the Defendant’s claim for privilege because it might be relevant to costs. At the outset, I advised the Plaintiff that I would not assess the Defendant’s claim for privilege with respect to any document for which the Plaintiff did not seek production. Whether privilege was properly claimed for documents not sought on this motion is not relevant to the costs of this motion. The parties are each to be commended for the significant efforts they have made to narrow the issues on this motion. Through these efforts the disputed documents were reduced from 132 to 23. I do not see how it could possibly be an efficient use of court time to review an additional 15 documents that are no longer in dispute.

[11] There is an additional issue relating to the Plaintiff’s motion to strike one paragraph from the Defendant’s Statement of Defence, which I will address at the end of these Reasons.

Claims for Privilege

[12] Most of the claims for privilege are based on both solicitor-client privilege and litigation privilege. Accordingly, I will set out the legal principles relating to each before examining the documents in dispute.

Solicitor-Client Privilege – Legal Principles

[13] For the purposes of this analysis, I adopt the following summary of the principles of solicitor-client privilege set out by Boswell J. in The Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 125, at paras. 217 – 221:

Solicitor-client privilege is a class privilege. It protects the confidential relationship between a solicitor and his or her client…

The basic rationale for solicitor-client privilege is well known and easily understood. Comprehensive and meaningful legal advice is realistically only possible where the client can be confident that what is said between her and her solicitor will not be disclosed. This rationale was explained as more than simply “utilitarian” by Justice Doherty, dissenting, but not on this point, in General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321, [1999] O.J. No. 3291 (C.A.) at para. 92. He described the privilege as “an expression of our commitment to both personal autonomy and access to justice.”

The onus is on the party asserting privilege to establish an evidentiary basis for it. See Chrusz at para. 95.

The conditions necessary to establish the privilege are grounded in its rationale. They were identified in the seminal case of Solosky v. The Queen, as above. There are three. The communication over which privilege is asserted must:

(a) be a communication between lawyer and client;

(b) which entails the seeking or giving of legal advice; and,

(c) which is intended to be confidential by the parties.

See also Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809 at para. 15.

The privilege is assiduously protected, but it is not entirely impenetrable nor without exceptions. Its scope does not extend to communications where legal advice is not sought or offered or where the communications are not intended to be confidential…

[14] Also relevant for the purposes of this case is the principle that solicitor-client privilege extends to communications with in-house counsel where the communications entail the seeking or giving of legal advice. Where in-house counsel give advice in a non-legal capacity it is not protected by the privilege: Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, at paras. 19 – 20.

[15] Further, documents not otherwise privileged cannot be cloaked with privilege by copying them to a lawyer. While the fact that the client sent a document to the lawyer may be privileged, the document itself would not be privileged: Ernewein v. Honda Canada, 2017 ONSC 1181, at para. 76.

[16] There is no distinction between privileged “communications” and unprivileged “facts”. Instead, there is a rebuttable presumption that “‘all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature’”: Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, at para. 40. See also Wintercorn v. Global Learning Group Inc., 2022 ONSC 4576, at para. 126:

Documents provided by a client to a lawyer for the purpose of obtaining legal advice are privileged. The plaintiffs are not entitled to know what GLGI conveyed to GLGI Counsel in order to obtain their advice. In Chambre des notaires, the Supreme Court of Canada rejected an earlier approach which differentiated between “fact” and “communication” in favour of a presumption that “all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature”: at para. 40 (see also Foster Wheeler, at para. 42).

[17] If a lawyer employs clerks and others in the conduct of their office business, their activities on behalf of the lawyer and client may also be protected by solicitor-client privilege: Re United States of America v. Mammoth Oil Co., [1925] 2 D.L.R. 966, 1925 CanLII 410 (Ont. C.A.), at p. 971. A communication between a lawyer and his or her client does not lose its privileged status because it is typed by a secretary.

[18] If a document is protected by solicitor-client privilege, consideration of litigation privilege is superfluous: Kennedy v. McKenzie, 2005 CanLII 18295 (Ont. S.C.), at para. 28.

Litigation Privilege – Legal Principles

[19] For the purposes of this analysis, I adopt the following summary of the principles of litigation privilege set out by Boswell J. in Catalyst Capital Group, at paras. 259 – 264:

Litigation privilege is another class privilege. Unlike solicitor-client privilege, it does not protect a relationship. Instead, it protects an area – a “zone of privacy” – necessary to foster the needs of our adversarial model of adjudication. See Blank v. Canada (Minister of Justice), 2006 SCC 39 at para. 34. It protects against the compulsory disclosure of communications and documents whose dominant purpose is preparation for litigation. See Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at para. 1.

The purpose of the privilege, says the Supreme Court,

…is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure. (Blank, para. 27).

The parameters of litigation privilege strike a balance between the need for a protected area of privacy in which preparation for adversarial litigation takes place and the need for full disclosure to ensure trial fairness. As Carthy J.A. observed in Chrusz, “the modern trend is in the direction of complete discovery…[L]itigation privilege is the area of privacy left to a solicitor after the current demands of discovery have been met.” (Para. 25).

The Supreme Court described the ambit of litigation privilege succinctly in Lizotte, as above, at para. 19:

Litigation privilege gives rise to an immunity from disclosure for documents and communications whose dominant purpose is preparation for litigation. The classic examples of items to which this privilege applies are the lawyer's file and oral or written communications between a lawyer and third parties, such as witnesses or experts.

The privilege applies only to communications made at a time when litigation was commenced or contemplated and where the dominant purpose of the communication (and not just a substantial purpose) was for use in, or advice concerning that litigation. See Blank, as above, at para. 60 and LCBO v. Lifford Wine Agencies, as above, at para. 74.

Again, the onus is on the party asserting the privilege to establish, with respect to each document in issue, that the dominant purpose for its creation was existing or contemplated litigation. See Bartucci v. Lindsay, 2010 ONSC 3942, at para. 11.

The time at which the dominant purpose for a document’s creation is to be assessed is the time when it was created. See Nova Chemicals (Canada) Ltd. v. Ceda-Reactor Ltd., 2014 ONSC 3995 at para. 35.

[20] I also adopt the test summarized by Ducharme J. in Kennedy, at para. 20:

[A] party asserting litigation privilege must establish that the documents were created:

(a) for the dominant purpose of existing, contemplated or anticipated litigation; and

(b) in answer to inquiries made by an agent for the party’s solicitor; or

(c) at the request or suggestion of the party’s solicitor; or

(d) for the purpose of being laid before counsel for the purpose of obtaining his advice; or

(e) to enable counsel to prosecute or defend an action or prepare a brief.

[21] In the present case, a significant dispute between the parties relates to the date that litigation privilege arose: when was litigation first contemplated or anticipated?

[22] The Plaintiff’s position is that litigation between the parties was not contemplated or anticipated until December 11, 2017, when their discussions and negotiations relating to remediation of the pond ended. Until that date the parties moved forward on a cooperative and collaborative basis to address the Remediation Plan.

[23] The Defendant’s position is that litigation between the parties was contemplated or anticipated as early as September 12, 2016, when Mr. Bray’s lawyer, Arnold Schwisberg, wrote to York Region demanding that the damage to his client’s property be remediated immediately. The Defendant argues that the implication of Mr. Schwisberg’s letter was that the Region had to remediate, or litigation would follow.

[24] Accordingly, all disputed litigation privilege documents are dated between October 12, 2016 and December 7, 2017.

[25] The dispute between the October 12, 2016 and December 7, 2017 dates is not, however, relevant to the question of solicitor-client privilege. Communications between a lawyer and client, which entails the seeking or giving of legal advice, may be solicitor-client privileged even if no litigation is anticipated or contemplated. See Ontario (Ministry of Community and Social Services) v. Cropley, 70 O.R. (3d) 680, 2004 CanLII 11694 (Ont. Div. Ct.), at para. 21:

It is well-accepted that solicitor-client privilege protects both written and oral communications. Furthermore, there is no requirement that solicitor-client communications relate to a discrete transaction or particular litigation.

[26] See also: Andersen v. St. Jude Medical Inc., 2007 CarswellOnt 9590, at para. 13:

Unlike litigation privilege which must relate to specific litigation, lawyer client privilege relates to any legal advice and it need not be related to specific litigation or even a specific transaction. See Ontario (Ministry of Community & Social Services) v. Ontario (Information & Privacy Commissioner) (2004), 2004 CanLII 11694 (ON SCDC), 70 O.R. (3d) 680 (Ont. Div. Ct.) It is only necessary that the communication be for the purpose of obtaining legal advice, that it was intended to be confidential and the privilege has not been waived.

[27] Given the dispute regarding the date at which litigation was “contemplated or anticipated”, I will review the history of the correspondence between the parties for the purpose of identifying the point at which litigation privilege might arise.

[28] Mr. Schwisberg’s first email to York Region was dated September 12, 2016. It was addressed to Cynthia Martin, the Project Manager in the Region’s Transportation Services Department, and copied to Grazyna Kalkowski, the Design Technician in the Transportation Services Department. The email stated:

I am the lawyer hired by Alan Bray, the owner of the captioned lands, to ensure that the present path of groundwater, rainwater and runoff, which has damaged his lands, is rectified and the damage remediated.

My understanding is that York Region directed K.J. Beamish Construction Co. Ltd. (“Beamish”) to implement a groundwater and drainage plan when Beamish’s road work on Bathurst St. immediately to the South of Mr. Bray’s land started one year ago. York’s drainage plan then routed groundwater and runoff to the west of the bridge and downgrade to the culvert which flows onto Mr. Bray’s lands. The flooding damages occurred recently through that path and related drainage paths, and carried large deposits of silt which built up on Mr. Bray’s lands…

Meanwhile, Mr. Bray is most grateful to have been told that York Region had on Friday instructed Beamish to proceed with a plan to remediate the drainage situation and rectify the damage so far caused.

I would be grateful to be advised specifically what steps York Region intends to take.

Accepting in good faith that York Region’s specific rectification and remediation steps will be implemented by Beamish as instructed, Mr. Bray is not content to oversee (or have me oversee) the process. Rather, Mr. Bray intends to make an insurance claim for flooding damages to his own insurer, and for that insurer to appoint an adjuster with the appropriate qualifications to work with Beamish and with your office to rectify the drainage waterway and remediate those damages.

Although I am advised that you are out of the office this week, I would appreciate your providing me with two things at this time:

1. a written list of specific steps that York Region plans on taking, of which it shall be instructing or has already instructed Beamish - to achieve rectification of the present drainage course and remediation of the damages (especially the pond which may have to be dredged and replenished); and

2. your availability for your office and I to have a productive discussion about the specific steps contemplated and their efficacy and timing.

Thank you in advance for your cooperation. Please let me know by return e-mail (or voicemail if that’s more convenient) when we can chat by phone.

[29] Ms. Grazyna forwarded this email to Paul Acquaah, Manager, Engineering, in the Transportation Services Department, who in turn forwarded it to Doug Graham, the Claims and Risk Analyst in the Finance Department. Mr. Graham spoke to Mr. Schwisberg on September 20, 2016, and, in an email to Mr. Schwisberg dated September 21, 2016, advised him that he had reported the incident to the Region’s insurer for further investigation. The email stated:

The Region’s contractor, Beamish Construction, is in the process of developing a remediation plan to encompass not only the remediation of your client’s property but also a review of the existing drainage plans. Please note that as the matter is currently under investigation, any and all plans and/or discussions with respect to remediation and/or repairs of your client’s property are being contemplated strictly on a ‘without prejudice’ basis.

[30] Mr. Schwisberg had requested copies of the initial drainage plan and the proposed remediation plan. Mr. Graham advised that he was reviewing this request with the Region’s legal department to determine whether the plans could be provided without a formal Freedom of Information request.

[31] On September 28, 2016, Mr. Schwisberg responded to Mr. Graham, copying several other York Region employees. This letter is the first to raise the prospect of litigation if the matter is not successfully resolved. Mr. Schwisberg advised Mr. Graham that he needed “an ‘on the record’ response from York and more importantly, disclosure of the documents”. The email stated:

If I cannot engage York Region’s disclosure and full cooperation, Mr. Bray will consider effecting his own remediation and rectification plan, paying for it himself, and taking legal action against York region for recovery of his costs and for damages.

[32] The email further stated:

I find it unsatisfactory that the remediation plan and drainage plan be withheld from Mr. Bray and I. It is also unsatisfactory that the remediation plan be formulated on a “without prejudice” basis - which does nothing to actually require York Region to follow through. The essence of my retainer is to avoid the need to litigate by ensuring that the Remediation Plan is sufficient and is implemented in accordance with that sufficiency, and I cannot do that without consultation with my water drainage engineering experts who are on standby who in turn must review both the Remediation Plan and the SNC Drainage Plan which the former is designed to correct and to which York Region must be bound to implement.

[33] Finally, Mr. Schwisberg advised that he would not bring a Freedom of Information request, and that:

[I]f this is the position your lawyer intends to take, then it will be quicker, easier and more reliable for me to issue a Claim and get the disclosure required through the Rules of Court mandatory disclosure provisions. I’m sure you will agree this is hardly the preferable means to proceed, but failure to release these two documents quickly will force me down this road….

Please do not misinterpret this e-mail. Again, it is not Mr. Bray’s intention (nor mine) to be adversarial. On the contrary. However, please understand that it is imperative I be advised specifically (and with relevant documentation) how this has happened, what is being done to ensure this will not continue, and what specific steps are to be taken to rectify the existing damage and by when.

Feel free to forward this email to your colleagues and counsel at York Region who may be able to assist us in moving forward on a fully cooperative basis.

[34] Mr. Schwisberg and Mr. Graham continued to exchange emails in relation to the documents that had been requested and whether they had already been disclosed.

[35] Mr. Graham forwarded Mr. Schwisberg’s September 28, 2016 email to Daniel Kuzmyk, Regional Solicitor and General Counsel of York Region.

[36] Mr. Kuzmyk affirmed an affidavit in this motion indicating that upon review of the September 28, 2016 correspondence from Mr. Schwisberg, he concluded that despite Mr. Schwisberg’s indication that the Plaintiff wished to avoid litigation, his threat regarding the commencement of litigation indicated that litigation was contemplated and likely imminent if the Region did not acquiesce to Mr. Bray’s requests.

[37] Mr. Kuzmyk and Mr. Schwisberg had a telephone conversation on October 7, 2016. Mr. Schwisberg has sworn an affidavit stating that during this phone call Mr. Kuzmyk discussed the Region’s intention to work “collaboratively” with Mr. Schwisberg to remediate Mr. Bray’s property and to pay his expert and legal fees to accomplish this.

[38] On October 12, 2016, Mr. Schwisberg emailed Mr. Kuzmyk to:

[C]onfirm that our mutual objective is to collaboratively establish a concrete remediation plan with specific steps to both rectify the damage and prevent its recurrence you confirm that it was York Region’s intention to commit to such a plan.

[39] Mr. Kuzmyk responded to Mr. Schwisberg the same day, confirming this discussion:

Arnold, thanks for your e-mail. By way of confirming our discussion last week, I met with Regional staff this morning, and can confirm our commitment to work collaboratively with your client to develop a remediation plan and carry out the required remediation work, at the region’s expense. I am hopeful that we will either have a fully agreed upon remediation plan or be close to that goal prior to the end of 2016, taking into account that we will also likely be dealing with external agencies... In any event, this will confirm our mutual intention and the Region’s commitment to be in a position to execute the remediation plan for spring/early summer 2017. Similarly, we undertake to pay your reasonable legal fees. With respect to your client’s consultant costs associated with the remediation, it is our intention to make sure that your client is not out of pocket with respect to the remediation; I would however like to touch base with you as soon as possible to get an idea of what consultants you expect to engage, and what those costs might be.

[40] Mr. Kuzmyk’s affidavit states that on October 12, 2016 he had a telephone conversation with several York Region employees in the Transportation Services Department and Claims and Risks regarding the Bray property and the allegations contained in Mr. Schwisberg’s correspondence. Lisa Leigh, a law clerk with York Region’s Legal Services Department attended the telephone conference and took notes of the call.

[41] On October 14, 2016, Mr. Kuzmyk wrote to Mr. Schwisberg to advise him that he had assigned carriage of the matter to his colleague, Kailey Fisher, who was, at the time, an Associate Counsel in the Region’s Legal Services Department. His intention was to meet with her and the client group “to crystalize next steps going forward from our end. I will remain in the background, but will be available to offer advice and assistance as needed.”

[42] Notwithstanding the parties’ professed intention to work collaboratively, and while some progress was made, the parties were not able to reach a final agreement on the remediation plan. A flurry of emails were exchanged between lawyers for each party between June and September 2017. The key point here is that all correspondence regarding the remediation plan went through the parties’ respective lawyers.

[43] Frustrated by the time that was being taken to reach a final resolution, Mr. Schwisberg advised Ms. Fisher (now named Ms. O’Neil)[^1] on July 21, 2017 that “if there is a shortfall and he [Mr. Bray] is left with unreimbursed remediation costs, then, with regret, we shall be on the threshold of litigation which Dan, you and I have strove to avoid – let’s try not to go there”.

[44] Further emails were exchanged between the lawyers in October and November 2017 as the parties tried to reach a limited settlement for the cost of the pond remediation. After some back and forth they could not agree on the wording of the partial settlement. On November 21, 2017, Mr. Schwisberg wrote to Charetina Lougheed, the Senior Associate Counsel for the Region who was dealing with Mr. Schwisberg at the time, stating:

The likelihood of litigation against York remains…

[45] On December 11, 2017, Mr. Schwisberg emailed Mr. Kuzmyk to advise him that, in his view, the negotiations with the lawyer for York Region had “gone very much sideways” and that he was reaching out “before dropping the writ”. He stated: “[I]f there is any chance for litigation to be avoided, then I am doing my client a disservice by not reaching out to you one last time.”

When Was Litigation Contemplated or Anticipated?

[46] Reviewing the correspondence as a whole, I am satisfied that, while the parties made good faith efforts to avoid litigation, litigation was “contemplated” by the time Mr. Schwisberg and Mr. Kuzmyk exchanged their emails on October 12, 2016. By that date, both sides had “lawyered up” and understood that if they could not reach a resolution, litigation would follow. An agreement by counsel to work cooperatively and collaboratively is entirely consistent with the anticipation or contemplation of litigation. The fact that one or both counsel take a conciliatory tone in their correspondence is to be commended, but it does not mean that litigation is not contemplated or anticipated. Threatening litigation and expressing a desire to avoid litigation are often just two sides of the same coin. By October 12, 2016, litigation was the “Sword of Damocles” that hung over both parties’ heads if they could not reach an agreement.

[47] After October 12, 2016, all correspondence relating to the remediation plan went through the lawyers for each party. By October 12, 2016, both parties were obtaining legal advice to determine what their respective rights and obligations were in these circumstances. Both parties contemplated litigation, and worked collaboratively to try to avoid it, but both parties proceeded on the understanding that if they could not settle their dispute litigation would likely follow.

[48] This does not mean that every York Region document made between October 12, 2016 and December 7, 2017 qualifies as litigation privilege. Each document must still be examined to determine whether it meets the other conditions for the relevant privilege to apply. But it does mean that documents produced by York Region between October 12, 2016 and December 7, 2017 may qualify if the other conditions do apply.

[49] I also note that while the “contemplation or anticipation” of litigation began as early as October 12, 2016, the progression of emails over time indicates that the prospect of litigation did not remain constant; it increased over time as the parties were unable to resolve their dispute as quickly or easily as they first hoped. By the summer of 2017, references to the possibility of litigation/desire to avoid litigation increased significantly. Thus, the “dominant purpose” of documents produced toward the end of the disputed period is more likely to qualify as litigation privilege.

Review of Documents

[50] Tab 16 are handwritten notes taken by Mr. Kuzmyk’s law clerk of the October 12, 2016 telephone meeting between Mr. Kuzmyk and York Region staff to discuss Mr. Schwisberg’s email regarding the Bray property. This meeting is referenced in Mr. Kuzmyk’s email to Mr. Schwisberg on October 12, 2016 (see para. 39, above) and further described in para. 40, above.

[51] These handwritten notes relate to information obtained by counsel from the client to assess the Region’s liability and appropriate resolution of the issues raised in Mr. Schwisberg’s emails. This document is subject to solicitor-client privilege and need not be disclosed.

[52] Tab 17 contains a chain of emails between Ms. Martin (Transportation Services Department) and OZA Inspections Ltd. (OZA), and emails between Ms. Martin and Ms. Lougheed (Legal Services). The Plaintiff does not seek production of the emails between Ms. Martin and Ms. Lougheed, which it acknowledges are subject to solicitor-client privilege, but does seek production of the OZA emails and documents.

[53] OZA is a contractor retained by the Region to conduct a Post Condition Survey of the Bray property. The emails between Ms. Martin and OZA are dated between October 14, 2016 and August 17, 2017, and relate to the production of the Post Condition Survey. The Post Condition Survey of the property was conducted on July 26, 2017 and was carried out in coordination with Mr. Schwisberg and Mr. Bray. Both Mr. Bray and Mr. Schwisberg were present when the survey was conducted.

[54] The Post Condition Survey itself is dated August 15, 2017. It appears to have been produced to the Plaintiff and is actually listed in both the Plaintiff’s Affidavit of Documents, Schedule A, Tab B, Document 12, and the Defendant’s Affidavit of Documents, Schedule A, Tab 65.

[55] York Region takes the position that these emails were created at the direction of counsel and are subject to litigation privilege because they were produced for the dominant purpose of anticipated litigation.

[56] Given that the OZA Post Condition Survey has already been disclosed to the Plaintiff, I do not see how the emails between Ms. Martin and OZA can be subject to litigation privilege. The first substantive email from Ms. Martin to OZA is dated November 24, 2016 and sets out the scope of the OZA instructions. This information would have to be disclosed in any event pursuant to Rule 53.03. The balance of the emails relates to the scheduling of the site visit. Given the content of these emails, I do not agree that the dominant purpose of the emails between Ms. Martin and OZA are for the purpose of anticipated litigation.

[57] Accordingly, the emails between Ms. Martin and OZA are not subject to either litigation privilege or solicitor-client privilege.

[58] Tab 19 is an email chain between Ms. Martin (Transportation Services Department) and legal counsel, including Mr. Kuzmyk and Ms. Fisher. The emails are dated between October 18, 2016 and October 19, 2016. They relate to Ms. Martin’s request for legal advice and Mr. Kuzmyk’s response. These emails are subject to solicitor-client privilege.

[59] Tab 28 are handwritten notes, dated October 28, 2016, by the Senior Law Clerk of York Region’s Legal Services Department of a call between staff of the Transportation Services Department and a lawyer in the Legal Services Department. The purpose of the call was to provide the lawyer with information relevant to the resolution of the outstanding dispute.

[60] Counsel for the Plaintiff took the position that solicitor-client privilege protects only what the lawyer tells the client, not what the client tells the lawyer. That position is clearly wrong in law. Solicitor-client privilege protects the communications in both directions. Nor is solicitor-client privilege lost because a law clerk or other employee of the lawyer or legal department is present to take notes of the conversation.

[61] These notes are subject to solicitor-client privilege.

[62] Tab 33 includes several emails. Some are between Mr. Schwisberg and lawyers for York Region and are not in dispute.

[63] The first email in dispute is an email from the York Region lawyer, Ms. Fisher, to Ms. Martin (Transportation Services Department) and Ms. Martin’s reply, both dated November 18, 2016. This exchange relates to Mr. Schwisberg’s email to the York Region lawyer. These emails are for the purpose of giving information to or gathering information from the client for the purpose of giving legal advice and are covered by solicitor-client privilege.

[64] The next email, dated November 22, 2016, is from Ms. Fisher to Ms. Martin, asking Ms. Martin to obtain certain information required by Ms. Fisher. This email is subject to solicitor-client privilege.

[65] The final email is dated November 23, 2016, in which Ms. Martin writes to a third party (OZA) to obtain the information requested by Ms. Fisher. This email was sent for the dominant purpose of contemplated or anticipated litigation and is subject to litigation privilege.

[66] Tab 41 is an email chain that starts with an email dated June 20, 2017 from Mr. Schwisberg to the York Region lawyers. This email is not in dispute.

[67] Mr. Kuzmyk then forwards this email to Engineering staff at York Region, asking for information so that he can respond to Mr. Schwisberg’s allegations.

[68] These emails are for the purpose of giving information to or gathering information from the client for the purpose of giving legal advice and are covered by solicitor-client privilege.

[69] Tab 52 is an email chain, dated July 20 to July 21, 2017, between Ms. Fisher, the lawyer for York Region, and York Region Transportation Services staff regarding a proposal made by Mr. Schwisberg to Ms. Fisher on July 17, 2017. The purpose of these emails is for Ms. Fisher to obtain the staff’s feedback to Mr. Schwisberg’s proposal so that Ms. Fisher can provide legal advice and reply to the proposal on York Region’s behalf.

[70] These emails are for the purpose of giving information to or gathering information from the client for the purpose of giving legal advice and are covered by solicitor-client privilege.

[71] Tab 53 is an email chain, dated July 21, 2017 to July 28, 2017, between Ms. Fisher and Ms. Martin of York Region Transportation Services regarding Mr. Schwisberg’s further correspondence of July 21, 2017. This July 21, 2017 email was the email in which Mr. Schwisberg advises Ms. Fisher that “if there is a shortfall and he [Mr. Bray] is left with unreimbursed remediation costs, then with regret, we shall be on the threshold of litigation…let’s try not to go there”.

[72] The purpose of Ms. Fisher’s emails to Ms. Martin is to advise Ms. Martin of Mr. Schwisberg’s correspondence and obtain information so that Ms. Fisher can provide legal advice and reply to Mr. Schwisberg on York Region’s behalf.

[73] These emails are for the purpose of giving information to or gathering information from the client for the purpose of giving legal advice and are covered by solicitor-client privilege.

[74] Tab 62 is an email chain between Charetina Lougheed, the Senior Associate Counsel for York Region, and York Region Transportation Services staff, dated September 7, 2017. The purpose of the email chain is to provide Ms. Lougheed information to reply to Mr. Schwisberg’s correspondence of September 6, 2017.

[75] These emails are for the purpose of giving information to or gathering information from the client for the purpose of giving legal advice and are covered by solicitor-client privilege.

[76] Tab 63 is Ms. Lougheed’s email to Mr. Kuzmyk to advise him of the information contained in Tab 62. It is covered by solicitor-client privilege for the same reason as Tab 62.

[77] Tab 66 is an email from Ms. Lougheed to York Region Transportation Services staff, dated September 21, 2017. The email summarizes the meeting held on September 19, 2017 to discuss how to move the Bray remediation efforts forward. Ms. Lougheed’s summary of the meeting was prepared to provide legal advice and strategy to staff regarding the on-going negotiations with Mr. Schwisberg and possible resolutions. It is covered by solicitor-client privilege.

[78] Tab 70 is a correspondence review and summary of all correspondence between Mr. Schwisberg and York Region over the one year period from September 12, 2016 to September 19, 2017. The summary was prepared by the Legal Services Department on October 3, 2017. It also includes summaries of legal advice given and decisions made at various points over the year. This is the work product of the Legal Services Department prepared for the purpose of providing legal advice to the client and is covered by solicitor-client privilege.

[79] Tab 73 is an email from Ms. Lougheed to Ms. Martin of Transportation Services, dated October 10, 2017. Ms. Lougheed requests that Ms. Martin compile certain documents that were requested by Mr. Schwisberg and provides Ms. Martin with an update on the file status and negotiations with Mr. Schwisberg. There are additional emails between Ms. Martin and her staff related to the location of the documents requested by Ms. Lougheed. These emails were forwarded by Ms. Martin to Ms. Lougheed. The documents themselves are not part of Tab 73.

[80] These emails are communications between the lawyer and client relating to documents requested by Plaintiff’s counsel, and are subject to solicitor-client privilege.

[81] The Plaintiff takes the position that only the emails from the lawyer are subject to solicitor-client privilege, but the client’s reply to the lawyer is not subject to solicitor-client privilege. As indicated at para. 60 above, that position is clearly wrong in law. Solicitor-client privilege protects the communications in both directions.

[82] Tab 77 is an email from Transportation Services staff to Ms. Lougheed, dated October 13, 2017, to advise Ms. Lougheed of an issue raised in one of Mr. Schwisberg’s emails relating to an LSRCA (Lake Simcoe Region Conservation Authority) permit, and to provide Ms. Lougheed with background information to enable her to provide legal advice.

[83] This email relates to communication from client to lawyer for the purposes of obtaining legal advice and is subject to solicitor-client privilege.

[84] Tab 80 is an email chain between the Transportation Services Department and the Legal Services Department. Again, counsel for the Plaintiff does not seek the emails from York Region’s lawyer to the clients, but does seek the client’s reply to the lawyer, taking the position that only communication from the lawyer to the client is protected by solicitor-client privilege. As indicated at para. 60 above, that position is clearly wrong in law. Solicitor-client privilege protects the communications in both directions.

[85] Tabs 82 and 83 are duplicate email chains. For the purpose of this analysis I will divide the emails into two groups.

[86] The first group is an email from David Atkins of the Transportation Services Department to other members of the Transportation Services Department regarding the “Bray Cleanup by Beamish”. This first email is dated October 26, 2017, and asks a question about work performed by one of the Region’s contractors on the Bray property. A response to the question is provided by Glen Cross of the same department on the same day.

[87] The second set of emails begins the same day, but includes Ms. Lougheed as one of the recipients, and is copied by Mr. Atkins to Ms. Lougheed for the purpose of providing her with information that Mr. Atkins believes to be relevant to the negotiations with Mr. Bray’s lawyer. There follow several emails to and from Ms. Lougheed relating to the remediation negotiations.

[88] The first two emails (the one from Mr. Atkins at 7:12 p.m. and Mr. Cross’s reply of 7:18 p.m.) are not subject to either litigation privilege or solicitor-client privilege. They were not requested by nor copied to York Region’s Legal Services Department.

[89] The second set of emails that were copied to Ms. Lougheed were specifically created to provide York Region’s lawyer with information for the purposes of providing or obtaining legal advice, and are subject to solicitor-client privilege.

[90] Tab 84 is an email from Mr. Atkin to Ms. Lougheed, dated October 27, 2017, providing information to Ms. Lougheed. This is information provided by the client to the lawyer for the purposes of obtaining legal advice with respect to the ongoing remediation negotiations with Mr. Schwisberg. This email is subject to solicitor-client privilege.

[91] Tab 85 is an email, dated October 30, 2017, from Ms. Lougheed to the Transportation Services team who attended a site visit at Mr. Bray’s property the previous week. The purpose of this email is to gather information from the client to respond to an email from Mr. Schwisberg. Both this email and the client’s reply are subject to solicitor-client privilege.

[92] Tab 92 is an email chain, dated November 10, 2017, from Ms. Martin of the Transportation Services Department to Ms. Lougheed of the Legal Services Department attaching a draft briefing note relating to the final settlement of the Bray property remediation, and requesting Ms. Lougheed’s review and edit. The note is a combination of legal advice and background facts. Ms. Lougheed’s reply email provides her revisions to the note.

[93] It is, first of all, not surprising that both the Transportation Services Department, which has expertise in engineering issues, and the Legal Services Department, which has expertise in legal issues, would work together in drafting the briefing note to obtain instructions in relation to the final settlement of the ongoing dispute.

[94] Both Ms. Martin’s request for Ms. Lougheed’s review of the draft briefing note and Ms. Lougheed’s proposed edits are subject to solicitor-client privilege. See Andersen, at para. 16:

Moreover a draft document submitted to counsel for advice and the resulting revised draft reflecting such advice are clearly privileged. This document is privileged and need not be produced.

[95] Accordingly, the documents at Tab 92 are subject to solicitor-client privilege.

[96] Tab 95 is an email, dated November 10, 2017, from Ms. Lougheed to Doug Graham of the Finance Department seeking instructions with respect to the Bray property remediation and Mr. Graham’s reply. There is another email from Mr. Graham to Ms. Lougheed, dated May 15, 2018, seeking an update on the Bray claim, and Ms. Lougheed’s response of the same date. All of these emails relate to the provision of legal advice to the client and are subject to solicitor-client privilege.

[97] Tab 98 is an email chain, dated from December 4, 2017 to December 14, 2017, between Ms. Lougheed and Ms. Martin and others in the Transportation Services Department. Ms. Lougheed is forwarding recent correspondence from Mr. Schwisberg regarding the Bray property remediation, and seeking information from Ms. Martin and staff so that Ms. Lougheed can respond to the concerns raised in Mr. Schwisberg’s email to her. The email chain continues with Ms. Martin providing Ms. Lougheed with the information requested and some follow up information.

[98] These emails relate to communications between lawyer and client for the purpose of obtaining information to respond to Mr. Schwisberg’s correspondence and assist in negotiating a settlement of the legal dispute, and as such are subject to solicitor-client privilege.

[99] Tab 101 is an email, dated December 6, 2017, from Mr. Kuzmyk to Mr. Acquaah (Transportation Services) in which Mr. Kuzmyk requests information relating to the settlement of the Bray property remediation. Mr. Acquaah responds with the requested information.

[100] These emails are communications between lawyer and client in which the lawyer is gathering information for the purpose of giving legal advice. It is subject to solicitor-client privilege.

Summary of Conclusions

[101] Based on the foregoing analysis, all documents reviewed are subject to solicitor-client and/or litigation privilege, except for the emails contained in Tab 17 (see paras. 52 – 57, above) and the first two emails contained in Tabs 82 and 83 (the one from Mr. Atkins at 7:12 p.m. and Mr. Cross’s reply of 7:18 p.m.; see para. 88 above).

Waiver of Privilege

[102] The Plaintiff also argues that there has been an implied waiver of “certain documents” purported to be privileged. The Plaintiff argues that this implied waiver is found in four paragraphs of the Defendant’s Statement of Defence.

[103] The first is para. 22, which states:

The Region designed and carried out the Project in… reliance on expert advice received from its various consultants and contractors.

[104] The second is para. 30, which states:

The Region denies any negligence in its decision to expropriate the expropriated lands.

[105] The third is para. 36, which states:

The Region, its employees, servants, agents, consultants and contractors conducted themselves with due care throughout the design and implementation of the work on the project and in dealing with Bray’s complaints during construction and after completion of the project.

[106] The fourth is para. 40, which states:

The Regent explicitly denies that the conduct of its employees, servants or agents vis-a-vis Bray has been “noxious” whatever that means.

Waiver – Legal Principles

[107] I adopt the summary of the legal principles for the doctrine of waiver set out by Glustein J. in Wintercorn, at para. 101 (citations omitted):

(i) The onus to prove waiver is on the party seeking to displace the privilege

(ii) Waiver requires that the possessor of the privilege: “(a) knows of the existence of the privilege; and (b) voluntarily evinces an intention to waive that privilege”

(iii) Solicitor-client privilege “must be as close to absolute as possible to ensure public confidence and retain relevance. … As such, it will only yield to implied waiver in the clearest of cases”

(iv) “Solicitor-client privilege is a fundamental civil and legal right belonging to the client. Any attempt to interfere with this special privilege should be limited to what is absolutely necessary in order to achieve the ends sought by the interference”

(v) Implied waiver to ensure fairness arises only when it is unfair for a party to rely on legal advice by “cherry-picking”, or by disclosing some privileged communications without disclosing related privileged communication. Examples include a party who “impugns legal advice or instructions, puts at issue his reliance on legal advice, or uses privileged documents as a sword”

[108] The waiver rule applies where a party attempts to take unfair advantage or present a misleading picture of selective disclosure: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 27 O.R. (3d) 291, 1995 CanLII 7258 (Ont. S.C.), at paras. 41-42.

Waiver – Analysis and Conclusion

[109] I frankly do not understand how any of the paragraphs in the Statement of Defence quoted above can possibly be construed as an “implied waiver” of solicitor-client privilege or litigation privilege. There is no partial disclosure of privileged communications or legal advice in any of those paragraphs. There is nothing that even alludes to legal advice or communications with lawyers.

[110] Accordingly, there is no waiver of privilege of any of the documents found to be privileged on this motion.

Motion to Strike Para. 45 of Statement of Defence

[111] The Plaintiff moves to strike para. 45 of the Statement of Defence, which states:

The Region further pleads that the expanded Bathurst Street provides a significant benefit to the general public, including to Bray. The Project has improved transportation connectivity and enhanced safety.

[112] The Plaintiff argues that this paragraph is irrelevant and “unreasonably expands the scope of the dispute into what constitutes public benefit” and ought to be struck pursuant to Rule 25.11(a), which provides:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

[113] The Plaintiff argues that whether the Bathurst Street extension provides a public benefit or improves transportation connectivity or enhances safety is irrelevant to the allegation that the drainage plan associated with the extension was inadequate to prevent runoff from the roadway damaging the Plaintiff’s property and was negligently designed and constructed. It is no defence to an allegation of negligent construction of a highway that the highway was built for the public benefit and improves transportation connectivity. Nor is there any suggestion in the Statement of Defence that there is any relationship between the drainage plan and enhanced public safety.

[114] The Plaintiff is concerned that if the Defendant actually intends to call expert witnesses to testify as to the public benefits of the extension it will unnecessarily increase the length of the trial on an issue that is not relevant to the legal issues in dispute.

[115] The Defendant argues that para. 45 of the Statement of Defence is related to para. 43, which states:

The Region states that all acts complained of by Bray are true policy decisions, for which the Region is immune from suit. The Region pleads and relies on section 450 of the Municipal Act, 2001 in that regard.

[116] Section 450 of the Municipal Act, 2001, S.O. 2001, c. 25 provides:

450. No proceeding based on negligence in connection with the exercise or non-exercise of a discretionary power or the performance or non-performance of a discretionary function, if the action or inaction results from a policy decision of a municipality or local board made in a good faith exercise of the discretion, shall be commenced against,

(a) a municipality or local board;

(b) a member of a municipal council or of a local board; or

(c) an officer, employee or agent of a municipality or local board.

[117] This provision codifies the common law relating to a public authority’s immunity from negligence claims for true policy decisions as opposed to operational decisions. See for example: Just v. British Columbia, [1989] 2 S.C.R. 1228, 1989 CanLII 16; Nelson (City) v. Marchi, 2021 SCC 41; Nylene Canada Inc. v. Corporation of the Town of Arnprior, 2017 ONSC 795, at paras. 4, 55, aff’d 2017 ONCA 726, leave to appeal to SCC dismissed, 2018 CanLII 48398 (SCC); Rausch v. Pickering (City), 2013 ONCA 740, at para. 12.

[118] The Plaintiff has no objection to para. 43 of the Statement of Defence. The Defendant is, of course, free to rely on s. 450 of the Municipal Act and argue that the design of the drainage plan was a true or core policy decision and immune from tort liability and not the operational implementation of policy. To make this argument, however, the Defendant does not have to prove that the Bathurst Street extension “provides a significant benefit to the general public” or that it “has improved transportation connectivity and enhanced safety”.

[119] In Nelson, the Supreme Court explained, at para. 56:

Thus, four factors emerge from this Court’s jurisprudence that help in assessing the nature of a government’s decision: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria.

[120] “Core policy decisions of the legislative and executive branches involve weighing competing economic, social, and political factors and conducting contextualized analyses of information”: Nelson, at para. 44. There is no requirement that a true policy decision will provide “a significant benefit to the public”. Whether a true policy decision provides a benefit to the public is precisely the kind of debate that the courts seek to avoid by granting immunity from negligence claims for such decisions. See Nelson, at paras. 46 –47 (citations omitted):

Moreover, if all government decisions were subject to tort liability, this could hinder good governance by creating a chilling effect … Public authorities must be allowed to “adversely affect the interests of individuals” when making core policy decisions without fear of incurring liability...

For these reasons, although there is no question that the legislative and executive branches sometimes make core policy decisions that ultimately cause harm to private parties… the remedy for those decisions must be through the ballot box instead of the courts.

[121] Thus, the Region’s decision to build the Bathurst Street extension might well qualify as a true policy decision. But, equally, so could a decision to close the Bathurst Street extension. The fact that one policy decision might improve transportation connectivity, and the other diminish it, neither adds nor detracts from the likelihood that either decision would qualify as a true policy decision.

[122] The focus of the Plaintiff’s Statement of Claim is not the decision to build the Bathurst Street extension, but the design and construction of the drainage plan. Paragraph 45 casts the net too broadly without narrowing in on the impugned decision. There is nothing in para. 45 of the Statement of Defence that connects “transportation connectivity” or “enhanced safety” to the specific negligence or nuisance alleged in this case. As it stands, para. 45 is something of a non sequitur.

[123] That said, the Court must be cautious in striking paragraphs from a Statement of Defence on the ground that it “may prejudice or delay the fair trial of the action”. A defendant is entitled to plead whatever material facts it chooses in response to the allegations in the statement of claim, provided that “the allegations are relevant and of at least marginal probative value and their probative value is not outweighed by their prejudicial effect.” Quizno’s Canada Restaurant Corporation v. Kileel Developments Ltd., 2008 ONCA 644, at para. 23.

[124] As the Court of Appeal stated in Quizno’s, at para. 16:

Pleadings are not the appropriate stage in an action to engage at large in what is essentially a trial judge’s exercise for determining the admissibility of evidence at trial -- i.e., weighing the probative value versus prejudice of facts. That exercise is not particularly well-suited to defining issues for trial, something which is for the parties to decide. Rule 25.11 provides that the pleading may be struck if it “may prejudice the fair trial of the action”. A fair trial requires that the defendant be able to put forward a “full” defence, not -- as the motion judge erroneously concluded -- a “reasonable” defence defined in advance by the plaintiff and the court.

[125] At this stage we do not know whether the Defendant actually intends to call any witnesses to address the purported “transportation connectivity” and “enhanced public safety” of the Bathurst Street extension.

[126] It appears to me that para. 45 of the Statement of Defence may just be an example of imprecise drafting. If there is a connection between the purported “transportation connectivity” and “enhanced public safety” pled in the Statement of Defence and the allegation of negligence and nuisance on the Bray property pled in the Statement of Claim, the Defendant should be permitted to make that pleading. As para. 45 reads now, however, the connection is not apparent.

[127] Accordingly, the appropriate Order in this case is to strike para. 45 of the Statement of Defence, with leave to amend.

Conclusion

[128] This Court Orders:

a. The Plaintiff’s motion for production of the following documents is granted:

i. The emails contained in Tab 17

ii. The first two emails contained in Tabs 82 and 83 (from Mr. Atkins at 7:12 p.m. and Mr. Cross’s reply of 7:18 p.m.)

b. The Plaintiff’s motion for production of all other documents at Tabs 16, 19, 28, 33, 41, 52, 53, 62, 63, 66, 70, 73, 77, 80, 82, 83, 84, 85, 92, 95, 98, and 101 is dismissed.

c. Paragraph 45 of the Statement of Defence is struck with leave to amend.

[129] If the parties are not able to agree on costs, the Plaintiff may file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of the release of this decision, and the Defendant may file responding submissions on the same terms within a further 15 days.

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ALAN EDWIN BRAY Plaintiff

– and –

THE REGIONAL MUNICIPALITY OF YORK Defendant

REASONS FOR DECISION

Justice R.E. Charney

Released: February 2, 2023

[^1]: For ease of reference, I will refer to Ms. Fisher/O’Neil as Ms. Fisher throughout these reasons.