Court File and Parties

COURT FILE NO.: CV-15-00010824-00CL DATE: 20240110 ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST

BETWEEN:

QUADRANGLE GROUP LLC, QCP CW S.A.R.L. and OBELYSK MEDIA INC., Plaintiffs Jonathan Lisus and Matthew Law, for Quadrangle Group LLC, QCP CW S.A.R.L., Plaintiffs Kris Borg-Olivier, for Obelysk Media Inc., Plaintiff

– and –

ATTORNEY GENERAL OF CANADA, Defendant Sanderson Graham and Sanam Goudarzi, for the Defendant

HEARD: December 20, 2023

Oral Reasons

OSBORNE J.

[1] On Thursday, December 14, 2023, during the evidence of Mr. Peter Hill, a witness called by the Attorney General, several documents were put to him in cross-examination by the plaintiffs. These documents were all documents produced by the Attorney General in this action. A large number of such documents contained redactions made on the basis of solicitor client privilege. Informed by the trial testimony of Mr. Hill, the plaintiffs challenged those claims of privilege with respect to nine documents out of a much larger number of the documents that contained redactions. I permitted the parties an opportunity to prepare submissions on the challenge of redactions on the basis of privilege on those nine documents, and the parties made submissions with respect to this issue the following day, on Friday, December 15th for a full half-day. I received extensive submissions and briefs of authorities from the plaintiffs and defendants, and advised the parties I would issue my ruling as early as possible.

[2] I released my ruling to counsel for the parties on Saturday, December 16th. I concluded that certain of the redactions were properly the subject of solicitor client privilege and others were not. I reviewed each redacted text portion in each of the nine documents at issue. I directed that the Attorney General produce as soon as possible, but in any event no later than midday on Sunday, December 17th, revised versions of the documents, including those previously redacted portions that I had directed be produced.

[3] Later in the day on Sunday, December 16th, counsel for the Attorney General advised that they were seeking instructions as to whether they would seek leave to appeal the ruling, and if leave were granted, seek an expedited appeal before the Divisional Court. They requested an opportunity until the end of the day on Tuesday, December 19th to obtain instructions from the Attorney General through the necessary personnel within the government. The plaintiffs opposed that request and asked that the documents be produced immediately in accordance with my ruling. Matters were further addressed at the resumption of trial on Monday morning, December 18th. I granted the request of the Attorney General for a brief opportunity to consider their position and to ask counsel to obtain instructions until the end of the day on Tuesday, December 19th as requested, and I postponed my direction that the unredacted portions of the documents be immediately produced until the Attorney General had obtained the instructions being sought.

[4] On the consent and with the agreement of the parties, I directed in the interim the trial would continue to the extent that the evidence of witnesses who would be called pending receipt by the Attorney General of instructions or pending the determination of an appeal of my ruling to the Divisional Court, the parties agreed, and I directed with their consent that the evidence of the witnesses would proceed on the basis of the affected documents in the form in which they are currently produced; in other words, without any redacted text being produced as had been directed by my ruling.

[5] To the extent that unredacted portions of the documents are subsequently produced, either because the Attorney General elects not to seek an appeal or the appeal was dismissed, those witnesses would be recalled if and as necessary solely to deal with questions arising out of the unredacted portions of the documents. That evidence was heard on Monday, December 18th and Tuesday, December 19th. In the evening of Tuesday, December 19th, counsel for the Attorney General advised by email that the Attorney General would not be seeking leave to appeal my ruling. However, counsel requested leave to file an affidavit, which counsel submitted would set out evidence as to a continuum of solicitor client communications underlying the documents at issue, and requested I reconsider my ruling made.

[6] The Attorney General relies on the decision of the Court of Appeal in Laudon v. Roberts, 2009 ONCA 383, and the decision of the Supreme Court of Canada in Regina v. Adams, [1995] 103 C.C.C. (3d) 262 for the proposition that a trial judge has the authority to reconsider a previous ruling made in the course of the trial while the judge remains seized of the case.

[7] The Attorney General has also referred me to authorities to the effect that the principle set out by the Supreme Court in Adams, which was a criminal case, equally applied to trials in civil matters. The Attorney General further submitted that this discretion should be exercised where the circumstances that were present at the time the order was made have materially changed such that it would be unfair or rather that it would be fair and just to revisit the ruling.

[8] Counsel for the Attorney General has offered to make the deponent of the proposed affidavit available for cross-examination if required. I advised counsel that given the request of the Attorney General, I would hear brief submissions on the issue of whether I should revisit my ruling as requested by the Attorney General at the resumption of trial this morning, Wednesday, December 20th. I have heard those submissions from both parties and considered the authorities put to me again by both parties.

[9] I recognize in certain circumstances a trial judge has the discretion to revisit mid-trial rulings. I also recognize that this is consistent with my overall obligation to manage the trial such that it proceeds in a manner fair to all parties, balanced as against the reality of judicial resources and the need for finality, particularly in respect of the many rulings which are often required to be made during the trial.

[10] Having considered the issue and the authorities given to me by both parties, I decline to exercise my discretion to revisit my ruling. When the issue arose last week, I permitted the parties an opportunity to reflect on their respective positions and make submissions, and the parties accepted that opportunity. I suggested to counsel they may wish to have a without prejudice discussion on possible resolution of the issues.

[11] I am advised that that occurred and that the issues were not resolved, with the result that both the Attorney General and the plaintiffs advised that they were prepared to argue the issue on Friday, December 22nd and did so. Extensive submissions and full briefs of authorities were prepared. The issue was argued for one-half day thoroughly, and I must say candidly, thoughtfully, in that submissions of both the Attorney General and the plaintiffs and the authorities put to me by them were of significant assistance. No adjournment was sought, no affidavit was sought to be tendered, the matter was fully argued and left in my hands to consider and release my ruling. I am not satisfied there has been any material change in circumstances.

[12] There was no request to adjourn the matter last week, nor a request for leave to file an affidavit until last night after the release of my ruling on the weekend.

[13] As observed in my ruling, the general counsel with Industry Canada and the one solicitor whose name appears in two of the email chains in the relevant nine documents referred to in my ruling has been present throughout the trial. I specifically canvassed with counsel for the Attorney General the issue of prejudice in the course of submissions made last week. I accepted in good faith the request of counsel for the Attorney General that it would now likely wish to file affidavit evidence, but in my view, it is inappropriate to further adjourn this trial to allow for that evidence to be adduced and an opportunity for possible cross-examination as suggested by the Attorney General, which counsel for the plaintiffs advised today it would wish to conduct, and then essentially a rearguing or at least a supplementary arguing of the motion that has fully been briefed and was argued fully last week.

[14] In my view, finality and certainty are important considerations as well and it is important to keep this trial on track to the greatest extent possible. I recognize that means the submissions by the parties on issues that arise mid-trial are usually done on a very expedited basis, as are rulings made by the trial judge. That is exactly what occurred in this case, and I am satisfied that the issues were fully canvassed during submissions, both written and oral, last Friday, December 15th. In the circumstances, I decline to reconsider my ruling and I direct the Attorney General to produce forthwith to the plaintiffs those unredacted portions of the relevant nine documents in accordance with my ruling. We will address trial scheduling issues, if any, once the plaintiffs have had a brief opportunity to consider the documents and proceed from there.

[15] That is my ruling on this issue.

Osborne J.