Court File and Parties

COURT FILE NO.: CV-21-00662351-0000 DATE: 20240415 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Durham Regional Police Service, Applicant -and- Ontario Civilian Police Commission, Ian Scott, and Thomas Lockwood, Respondents -and- Durham Regional Police Service Association, Intervenor

BEFORE: Justice J. S. Shin Doi

COUNSEL: David G. Cowling, Alexander Boissonneau-Lehner, Ian Johnstone, for the Applicant Emtiaz Bala and Daniel Mayer, for the Respondents Joshua S. Phillips, Kristen Allen and Geoff Cross, for the Intervenor

HEARD: October 5, 2023

Endorsement

[1] The Respondent Ontario Civilian Police Commission (the “Commission”) is engaged in an investigation of allegations of misconduct by senior members of the Durham Regional Police Service (the “Applicant”). The Applicant brings an application to prohibit the Respondents from disclosing, disseminating, copying, reproducing, editing, or otherwise dealing with two workplace investigation reports prepared by a lawyer who specializes in workplace investigations, Gillian Shearer (collectively, the “Shearer Reports”). The Applicant seeks a declaration that the Shearer Reports are privileged.

[2] At the beginning of the hearing, the Applicant submitted that it consents to the use and disclosure of the Shearer Reports to the Commission but requires the Shearer Reports not be further disclosed, disseminated, or made public. The Respondents and the Intervener Durham Regional Police Service Association (the “Association”) oppose the restrictions on the Shearer Reports and the declaration that the Shearer Reports are privileged. If the Shearer Reports are privileged, then they argue that the Applicant has waived privilege.

[3] The Application is dismissed. Shearer Report 1 is not privileged. It is uncertain whether Shearer Report 2 is privileged because it was not produced to the court for review to determine privilege. However, if the Shearer Reports are privileged, then privilege was waived or lost. The Shearer Reports should be produced to the Commission without restriction. The Commission has a statutory obligation to investigate and keep matters secret except for law enforcement purposes or as it considers advisable. The Commission is also subject to privacy legislation. The assurances of confidentiality by the investigator were qualified so that disclosure is permitted as may be required by law. There is a public interest in disclosure of the Shearer Reports without restriction to the Commission in order to protect the employees of the Applicant from harassment and a toxic workplace.

I. Facts

[4] The Applicant provides police services for the Regional Municipality of Durham.

[5] The Commission is an independent, quasi-judicial agency established under the Police Services Act, R.S.O. 1990, c. P. 15. The Commission has two divisions, adjudicative and investigative. It is empowered to conduct investigations of a municipal police service that has flagrantly or repeatedly failed to comply with prescribed standards of police service. The Respondent, Ian Scott, and the Respondent Thomas Lockwood are lawyers retained by the Commission to assist in the investigation of the Applicant.

[6] The Association is the exclusive bargaining agent for approximately 1,110 employees of the Applicant.

[7] The Durham Regional Police Services Board (the “Board”) is the civilian governing body of the Applicant.

[8] The Board and the Association entered into an agreement in 2014 (the “2014 Agreement”) which entitles the Association to receive a full copy of all investigation reports including work product prepared pursuant to the Respect in the Workplace Directive. The Applicant incorporated a portion of the 2014 Agreement in the Respect in the Workplace Directive and in 2020, the Board and the Association incorporated it into the collective agreement.

[9] In 2016, the Applicant retained Ms. Shearer to investigate allegations concerning a number of members including Robert Wallington. The allegations date back to at least 2013. Ms. Shearer’s investigation was conducted in the context of an ongoing grievance relating to the allegations. Ms. Shearer delivered her report to the Applicant’s lawyers, Johnstone & Cowling LLP in July 2017 ("Shearer Report 1"). The Applicant disclosed Shearer Report 1 to the Association on July 27, 2017.

[10] In 2018, the Applicant’s lawyers then retained Ms. Shearer to conduct an investigation on behalf of the Applicant. The investigation concerned allegations made by Vanessa Micieli, an employee of the Applicant. Ms. Shearer delivered the second report in December 2018 ("Shearer Report 2"). The Applicant disclosed Shearer Report 2 to the Association on or around April 4, 2019.

[11] In January 2019, the Solicitor-General expressed concern about policing in Durham and requested that the Commission investigate allegations of misconduct. The Commission issued an interim order in May 2019 which required a systemic investigation and appointment of an administrator. On or about June 17, 2019, the Commission served a summons on the Association seeking production of a copy of all documents. The Association disclosed a copy of Shearer Report 1 and notes and transcripts of witness interviews. The Commission also served a summons on Ms. Shearer on November 28, 2019. The Applicant objected to the summons on the grounds that the materials sought were privileged and confidential.

[12] At the beginning of the hearing of the Application, the Applicant submitted that it now agrees to provide the Shearer Reports to the Commission on the condition that the Shearer Reports are not further disclosed, disseminated, or made publicly available due to confidentiality concerns. The Commission submits it has not reviewed the Shearer Reports and can not accept that condition. The Commission explains that in any event the legislation requires secrecy subject to certain exceptions. The Association also opposes the condition requested by the Applicant because transparency is important to protect employees from harassment and a poisoned work environment.

II. Ontario Civilian Police Commission

[13] The Commission is established under the Police Services Act, R.S.O. 1990, c P.15. which sets out its powers and duties. Subsections 22(1) and 25(1) provide that the Commission’s powers and duties include “conducting investigations with respect to municipal police matters” and to “investigate, inquire into and report on” the conduct or performance of duties of a police officer.

[14] The Divisional Court in Canadian Civil Liberties Assn. v. Ontario Civilian Commission on Police Services, 80 O.R. (3d) 787 held at para 9,

It is the clear intention of the legislation that the Commission exercise ultimate responsibility for the oversight of municipal policing in Ontario. The Commission has a specialized expertise in respect of police disciplinary matters.

[15] The Commission has the power to summon persons to give evidence and produce documents, except anything that is privileged under the law of evidence (Public Inquiries Act, S.O. 2009, c 33, ss 33(3) and (13)).

[16] The Commission’s obligations of confidentiality, and the exception for law enforcement purposes are set out in Police Services Act, ss. 21(10) and (11):

Confidentiality

(10) Each member of the Commission shall preserve secrecy in respect of all information obtained in the course of his or her duties under this Act and shall not communicate any such information to any person, except, (a) as may be required in connection with the administration of this Act and the regulations; (b) to his or her counsel; or (c) with the consent of the person, if any, to whom the information relates. 2002, c. 18, Sched. N, s. 60.

Exception - law enforcement purposes

(11) Despite subsection (10), the chair of the Commission or his or her designate may communicate any information obtained in the course of their duties under this Act as may be required for law enforcement purposes. 2002, c. 18, Sched. N, s. 60. Testimony

[17] Subsection 25(3) also provides that the Commission “may communicate the report to any other person as the Commission considers advisable.”

[18] I note that as of April 1, 2024, the Police Services Act was repealed and the Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sched. 1 came into force. The Community Safety and Policing Act, s. 216 (5.1) provides that the Commission is continued until it is dissolved and shall carry out duties as may be prescribed under the Police Services Act, as if the Police Services Act was still in force, subject to such modifications or as may be prescribed.

[19] The Commission falls under the Freedom of Information and Protection of Privacy Act, R.R.O. 1990, Regulation 460, Schedule, column 1, item 97 (see also IPC Order PO-361). The Freedom of Information and Protection of Privacy Act protects the privacy of individuals with respect to personal information about themselves held by institutions.

III. The Shearer Reports

Are the Shearer Reports privileged?

[20] Shearer Report 1 is not privileged. It is unclear whether Shearer Report 2 is privileged. If either Shearer Report 1 or Shearer Report 2 is privileged, then the Applicant waived privilege. Therefore, there should be no restrictions on Shearer Report 1 or Shearer Report 2 when they are produced to the Commission.

Solicitor-Client Privilege and Settlement Privilege

[21] Solicitor-client privilege is established in a document if there is “(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice, and (iii) which is intended to be confidential by the parties” (Solosky v. The Queen, [1980] 1 SCR 821). A workplace investigation report is not privileged by virtue of the fact that a lawyer prepared the report (Alberta v. Suncor Energy Inc., 2017 ABCA 221, Howard v. London (City), 2015 ONSC 156). The Applicant retained lawyer Ms. Shearer as an “independent workplace investigator” as set out in a retainer letter dated April 17, 2016. Ms. Shearer was retained to conduct an independent investigation into the allegations raised by the Association on behalf of its members. The retainer letter does not indicate that she was retained to provide legal advice, nor does it stipulate that her report would be subject to solicitor-client privilege. Shearer Report 1 is not solicitor-client privileged. Arbitrator Trachuk similarly determined that the workplace investigation report prepared by lawyer Christine Thomlinson for the Board was not privileged (Durham Regional Police Association v. Durham Regional Police Services Board).

[22] It is unclear that Shearer Report 2 is subject to solicitor-client privilege. In contrast to the retainer relating to Shearer Report 1, the Applicant retained Ms. Shearer for Shearer Report 2 through its external counsel pursuant to a privileged and confidential letter dated July 19, 2018. The retainer letter states that Ms. Shearer is being engaged in her “capacity as a lawyer to provide professional legal services” for the purposes of assisting in “providing legal advice”. The retainer letter further states that Shearer Report 2 and all other work product and advice are subject to solicitor-client privilege. Whether Shearer Report 2 contains legal advice that is subject to solicitor-client privilege is a factual question. In Howard v. London (City), the retainer indicated the lawyer-investigator would be providing “privileged recommendations, opinions and advice,” but the court found the report was not privileged. I note that Ms. Shearer through her counsel takes no position on the issue of solicitor-client privilege.

[23] In Gower v. Tolko Manitoba Inc. 2001 MBCA 11, it was held that the appropriate test is whether the investigation was related to the rendition of legal services and the retainer letter was a strong piece of evidence that indicated the rendering of legal services. The Commission distinguishes this case from Gower. The Commission explains that unlike the Shearer Reports, the report in Gower was meant “to gather the facts” and “based on those facts make recommendations and provide advice in respect to the legal implications…possibilities of litigation…how to act to avoid, if possible, litigation” and “if litigation did happen, what were the possibilities of success” (Gower v. Tolko Manitoba Inc. at paras 2, 3; aff'd Gower v Tolko Manitoba Inc., 2001 MBCA 11). The Commission argues that it is not the type of information that the Applicant would share with the Association.

[24] The court must review Shearer Report 2 to determine if any portion of it contains legal advice or is inextricably linked to legal advice and is subject to solicitor-client privilege. I am aware of the recently released decision of Myers J. in Ontario Civilian Police Commission v. Moreira, 2024 ONSC 1872 in which the parties consented to a court review of certain documents to determine the existence of privilege.

[25] The Shearer Reports are not subject to settlement privilege. In May 2021, the Applicant advised the Commission that it no longer asserted settlement privilege over Shearer Report 1. The Applicant now seeks to claim settlement privilege over both of the Shearer Reports. There are three elements to establish settlement privilege: (a) a litigious dispute must be in existence or within contemplation; (b) the communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and (c) the purpose of the communication must be to attempt to effect a settlement (R v. Delchev, 2014 ONCA 381 at para 24). I agree with the Commission and the Association that the second and third elements are missing to establish settlement privilege over the Shearer Reports.

Wigmore (Case-by-Case) Privilege

[26] The Applicant argues that the Shearer Reports belong to the Applicant and are subject to Wigmore (case-by-case) privilege. Wigmore privilege has no application because no confidentiality is contemplated with respect to the Commission and the confidentiality undertaking provided by Ms. Shearer was qualified. There is also a greater public interest and benefit in disclosure of the Shearer Reports without restriction to the Commission.

[27] The Applicant relies on Slavutych v. Baker, [1976] 1 S.C.R. for the fundamental conditions necessary for the establishment of a privilege against the disclosure of communications,

(a) The communications must originate in a confidence that they will not be disclosed.

(b) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(c) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(d) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

[28] The Applicant argues that the Shearer Reports were explicitly confidential as they originated in confidence and were sent in confidence to the Applicant or the Applicant’s lawyers for the purpose of providing legal advice to the Applicant. The 2019 Agreement reemphasized the confidential nature of Shearer Report 1 and the underlying workplace investigation undertaken by Ms. Shearer.

[29] I find that the Shearer Reports are not protected from disclosure by the undertakings of confidentiality provided by Ms. Shearer and the confidential process of the investigation. The Applicant argues that workplace investigations necessitate confidentiality and that a lack of confidentiality would have a chilling effect on such investigations. The Applicant submits that if the confidentiality of the process is not respected, it would give rise to fears of reprisal, and would result in a lack of cooperation of witnesses who would not wish to be involved in any workplace investigation.

[30] Ms. Shearer states in her Affidavit sworn on May 6, 2020, that during each interview that she conducted, during both investigations, she informed all participants that their communications with her would remain confidential, “except as required by law”. The interviewees knew that the undertaking of confidentiality by Ms. Shearer was qualified. The law, as discussed above, requires the disclosure of the Shearer Reports to the Commission. The Commission is under a statutory obligation of secrecy, subject to exceptions, and must also comply with privacy legislation.

[31] The Association explains that “a right of confidentiality, by itself, is not sufficient to protect against compelled disclosure should the confidential information be required in a court of law or other proceeding” (St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 89 O.R. (3d) 81 (ON CA) at para 23). The Association argues that the need for the Commission to pursue its statutory mandate through the power to summons probative documents far outweighs any asserted harm from the disclosure of the Shearer Reports. The Association explains in its factum, para 87,

It is trite that police services wield exceptional power in our society. Public oversight is critical. The allegations raised by the [Commission] investigation are wide-ranging and extraordinary. The timely and fulsome investigation of these allegations is of fundamental importance to the entire Durham community. In the context of this case, the need for the [Commission] to pursue its statutory mandate through the power to summons probative documents far outweighs any asserted harm from the disclosure of the Shearer reports.

[32] The Association further argues that it is obvious that the Commission’s mandate is not to discipline the witnesses who participated in the Shearer investigations, but to protect the broader public interest in the oversight of policing services. As argued by the Association, expectations of confidentiality are limited when one of the parties is subject to regulatory oversight.

[33] I agree with the Association and the Commission. The Commission requires the production of the Shearer Reports to fulfill its statutory mandate and the concern about breaching confidentiality is not persuasive given the qualified undertaking provided by Ms. Shearer and that the Commission has an obligation of confidentiality and must comply with privacy legislation. I also agree with the Association that there is a broader public interest and benefit to protect employees from harassment and a toxic workplace. That mandate and benefit outweigh any injury or harm from the disclosure of the Shearer Reports.

Has privilege been waived or otherwise lost?

[34] If the Shearer Reports are privileged, then the privilege has been lost or waived by the Applicant.

[35] Privilege may be waived expressly or implicitly. The legal principles were summarized by Koehnen J. in Canadian National Railway Company v. Holmes et al. 2022 ONSC 1682 at para 41,

(i) Confidentiality is an essential element of privilege. Without confidentiality, privilege is waived. [8]

(ii) Privilege cannot attach to information that is already in the public domain because it lacks the element of confidentiality. [9] When a party introduces privileged material into a public record, it effectively waives privilege. [10]

(iii) Once privilege has been waived, it cannot be unwaived. [11]

(iv) Inadvertent production of a privileged document does not necessarily waive privilege. [12]

(v) Delay in reasserting privilege does not necessarily preclude privilege either. What happens during the delay is material. If, for example, documents have been used without objection after inadvertent waiver, a conclusion that privilege has been waived is more likely. [13]

(vi) Even if the initial disclosure was inadvertent, the privilege holder must act promptly to reassert privilege. [14] Failure to do so may support an inference that the party did not intend to maintain privilege over the documents. [15] It is not for others to protect the privilege when the privilege holder’s conduct does not demonstrate a willingness to protect confidentiality. [16]

(vii) The failure to take any steps to reassert privilege allows a court to infer that the privilege holder intended to waive privilege. [17]

[36] In S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., McLachlin J provides this explanation of waiver of privilege,

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 that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost Rogers v. Hunter, [1982] 2 W.W.R. 189, 34 B.C.L.R. 206 (S.C.).

[37] The Ontario Court of Appeal in R v. Youvarajah, 2011 ONCA 654 at para 149, overturned on other grounds 2013 SCC 41, held that “in cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent.”

[38] On July 27, 2017, the Board disclosed a copy of Shearer Report 1 to the Association. The Board then filed Shearer Report 1 as part of its evidence before Arbitrator Trachuk who heard an abuse of process motion brought by the Association. On April 19, 2018, the media published an article about the grievance arbitration which summarized aspects of Shearer Report 1. Arbitrator Trachuk issued an award regarding the Association’s abuse of process motion and the award includes a summary of Shearer Report 1 which is available. Shearer Report 1 was also included in the Applicant’s Chief Martin’s appeal and judicial review of the Interim Order in the Commission’s Record of Proceedings with the Chief’s Approval, Chief Martin’s Fresh Evidence Motion, Chief Martin’s Factum for Application No. 1, and the Commission’s Responding Factum for Application No. 1. Shearer Report 1 was further made public in Chief Martin’s Leave to Appeal Record and Leave to Appeal Factum as well as in the materials for the challenge to extension of the Interim Order which was later withdrawn. It is clear that Shearer Report 1 is in the public record, any privilege over Shearer Report 1 was waived by the Applicant, and privilege was lost.

[39] The Applicant provided Shearer Report 2 to the Association. The Affidavit of Colin Goodwin, President of the Association, sworn on January 13, 2022 indicates that Shearer Report 2 was provided to the Association on April 4, 2019 without any conditions or any claim of privilege. Mr. Goodwin also swears that on March 26, 2019, the Applicant’s Manager of Employee & Labour Relations advised the complainant of the results of Ms. Shearer’s investigation. No privilege was claimed over Shearer Report 2.

[40] The Commission also came into possession of a two-page excerpt of Shearer Report 2. The Commission submits that the Board has control over the Shearer Reports and has been circulating the Shearer Reports to adverse parties. The Board later explained to the Commission that it was advised by the Applicant that there was a limited waiver over the Shearer Reports and that it did not intend to waive solicitor-client privilege.

[41] The Applicant argues limited waiver and submits that the 2014 Agreement, which provides for disclosure of reports to the employees of the Intervenor, were only to be viewed by the President, Vice President, and full-time employees of the Applicant, including their legal counsel. The Shearer Reports could only be used by the Association for the purpose of representing its members on issues relating to the Respect in the Workplace Directive. The Applicant’s argument is weak because of the broader circulation of the Shearer Reports.

[42] In my view, given the disclosure and circulation of Shearer Report 2, fairness and consistency require that privilege is waived over Shearer Report 2. There should be no restrictions attached to the production of either Shearer Report 2 or Shearer Report 1 to the Commission. In any case, as discussed above, the Commission is legally bound by confidentiality and privacy, and the confidentiality undertakings by Ms. Shearer were qualified so there is no concern about the breach of confidentiality. There is also a greater public interest and benefit in disclosure without restriction to protect the employees from harassment and a toxic workplace, as advocated by the Association.

IV. Disposition

[43] I dismiss the Application. Shearer Report 1 is not privileged, and it is unclear that Shearer Report 2 is privileged. Any privilege attached to the Shearer Reports was waived or lost. I order that the Applicant produce the Shearer Reports to the Commission without restriction.

[44] If the parties are unable to agree on costs, the parties may make costs submissions up to 5 pages in length within 14 days.

JUSTICE J. S. SHIN DOI Released: April 15, 2024