Court File and Parties

COURT FILE NO.: CV-13-00019390-0000 DATE: 20240513

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Angie Williams and Dryden Williams and Jasmyn Williams, Minors, by their Litigation Guardian, Kim Ann Barrette, Plaintiffs – and – Andrew Williams, Canadian Pacific Railway Company/Compagnie de chemin de fer Canadien Pacifique, John Doe(s) and the Corporation of the Town of Lakeshore, Defendants

BEFORE: Howard J.

COUNSEL: Jeff Van Bakel, for the proposed intervenor, Gregory John Monforton Victoria Yang and D. Joel Dick, for the Plaintiffs Anne Davenport, for the Defendant Andrew Williams Christopher J. Rae and Raajan Aery, for the Defendants Canadian Pacific Railway Company, James Hamilton, and Christopher McMillan David S. Thompson, for the Defendant Corporation of the Town of Lakeshore

HEARD: May 24, 2023

RULING ON INTERVENTION MOTION

[1] The motion before the court arises out of a horrific motor vehicle accident that occurred on June 10, 2012, involving a collision between a minivan operated by Mr. Andrew Williams (“Andrew”) and a freight train operated by the Canadian Pacific Railway Company (“CP Rail”). [1]

[2] Andrew’s four children, Jasmine, Dryden, Wynter, and Brooklyn, were all passengers in his minivan at the time of the collision. Tragically, Wynter and Brooklyn were killed in the collision. It is said that Dryden suffered severe and permanent personal injuries.

[3] The collision occurred at a railway crossing located at Strong Road North on County Road 42 in the Town of Lakeshore, in the County of Essex.

[4] Apart from the criminal proceedings laid against Andrew, [2] two personal injury actions were commenced in the aftermath of the collision.

[5] By statement of claim issued in May 2013 (the “First Action”), Andrew’s former spouse and the mother of their four children, then known as Ms. Angie Williams, now Ms. Angie Provost (“Angie”), brought an action in her own name and as litigation guardian for Dryden and Jasmyn against Andrew, CP Rail, the engineer and conductor of the freight train, [3] and the Corporation of the Town of Lakeshore (“Lakeshore”).

[6] Angie had retained Mr. Gregory John Monforton, the proposed intervenor here, in June 2012 to represent the plaintiffs’ interests in the First Action. The statement of claim in the First Action was prepared by Mr. Monforton’s office.

[7] In a second lawsuit commenced in June 2014, Andrew and his mother (the children’s paternal grandmother), Ms. Crystal Belward, brought an action against CP Rail, the engineer, the conductor, and Lakeshore for damages allegedly suffered as a result of the collision. This second lawsuit is not in issue on the motion before the court.

[8] In February 2014, the plaintiffs and Andrew entered into minutes of settlement, purporting to resolve all claims against Andrew in the First Action. Mr. Monforton acted for the plaintiffs in connection with the settlement. Mr. Monforton remained counsel of record for the plaintiffs until April 2015.

[9] Given that two of the plaintiffs, Dryden and Jasmyn, continued to be minors at the time of the settlement, a motion for court approval of the settlement was required and was brought pursuant to rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and, ultimately, a judgment approving the settlement was issued in July 2014.

[10] However, an issue has since arisen concerning the appropriate interpretation of the minutes of settlement and judgment. Indeed, a motion has been brought seeking the court’s determination of the proper interpretation of the minutes of settlement and judgment (the “Settlement Interpretation Motion”). The Settlement Interpretation Motion has yet to be argued.

[11] Mr. Monforton, the former lawyer for the plaintiffs in the First Action, now brings this motion as proposed intervenor seeking an order for leave under rule 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to intervene as an added party to the Settlement Interpretation Motion. Mr. Monforton seeks permission to file affidavit evidence, make oral submissions, and have the same rights of participation as the other parties to the Settlement Interpretation Motion.

[12] Mr. Monforton also seeks a declaration that the plaintiffs have waived privilege over their communications with Mr. Monforton relating to the subject-matter of the Settlement Interpretation Motion. [5]

[13] Although the plaintiffs do not waive solicitor-client privilege, they support the intervention sought by Mr. Monforton on the Settlement Interpretation Motion. However, the intervention is vigorously opposed by Andrew, CP Rail, and Lakeshore.

[14] For the reasons that follow, the intervention motion of Mr. Monforton is dismissed.

Factual Background

[15] There is no real dispute amongst the parties as to the underlying facts. [6]

[16] On the morning of Sunday, June 10, 2012, Andrew was driving his Dodge Caravan minivan southbound on Strong Road North in the Town of Lakeshore, approaching a railway crossing. As I have said, Andrew’s four children were passengers in the minivan with him that morning. Strong Road is a two-lane, gravel, country road, running through farm fields.

[17] At about 9:40 a.m., as Andrew crossed a passive railway crossing at Strong Road, north of County Road 42, he drove his minivan in front of an oncoming freight train, operated by CP Rail, which was travelling westbound. It was a large and long freight train.

[18] Indeed, it took more than a half mile to stop this train after the application of the emergency brakes. Moreover, it took approximately 300 feet and approximately six seconds after the application of the emergency brakes before there was any slowing of the train.

[19] The freight train violently collided with the minivan.

[20] As I have said, as a result of the impact of the collision, two of the children in the minivan, Brooklyn and Wynter, died instantly and were found lifeless at the scene. At the time of their deaths, Brooklyn was just three years of age, and Wynter was six years of age.

[21] It is alleged that Mr. Williams and his two surviving children, Jasmyn and Dryden, were seriously injured as a result of the collision. As of the date of the collision, Jasmyn was not yet 19 months of age, and Dryden was four years of age.

[22] By statement of claim issued on May 16, 2013, bearing court file no. CV-13-19390, Angie commenced the First Action on behalf of herself and her two surviving children, Jasmyn and Dryden, against Andrew, CP Rail, and Lakeshore.

[23] All defendants defended the First Action. Moreover, each of CP Rail and Lakeshore claimed against, inter alia, Andrew for contribution and indemnity with respect to any amounts that either may be found responsible to the plaintiffs. However, Mr. Williams did not crossclaim against either of his co-defendants.

[24] By statement of claim issued in London, Ontario, on June 9, 2014, bearing London court file no. CV-14-3456, Andrew and his mother commenced an action against the CP Rail defendants and Lakeshore for damages allegedly suffered as a result of the collision. In 2017, the London action was transferred to Windsor and was assigned Windsor court file no. CV-17-24829.

[25] On February 19, 2014, less than one year after the commencement of the First Action, the plaintiffs, Andrew, and his insurer, Aviva Canada Insurance Company (“Aviva”), settled the First Action and entered into minutes of settlement.

a. The minutes of settlement provided, collectively, that in return for Aviva paying its policy limit of $1 million to Mr. Monforton’s office in trust (to be invested subject to court approval and direction), $140,000 for legal fees, $18,200 for HST, and $4,500 for disbursements, the plaintiffs agreed that regardless of the ultimate award in damages against Andrew, “they will accept the policy limit in full and final satisfaction of any and all claims arising out of this Court Action, CV-13-19390 with respect to him.” b. Aviva confirmed that the said policy of insurance for $1,000,000 was the only policy available to respond to the claims against Andrew. c. Paragraph 4 of the minutes of settlement provided that the plaintiffs, including the minor plaintiffs with court approval, “will release [Andrew] for any and all claims against him by them in this action.”

[26] As referenced above, given that Dryden and Jasmyn Williams were minor plaintiffs, court approval of the settlement under rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 was required in order for the minutes of settlement to be binding and enforceable. In support of the infant settlement motion, Mr. Monforton swore an affidavit on June 9, 2014, and Angie, as litigation guardian, swore an affidavit on June 12, 2014.

[27] The infant settlement motion was ultimately heard by Madam Justice Mary Jo Nolan, over two court appearances, and, ultimately, Nolan J. issued a judgment approving the settlement on July 29, 2014.

[28] At the time, neither CP Rail nor Lakeshore was given notice of either the settlement or the infant settlement approval motion before Nolan J.

[29] As set out in the affidavits file before Nolan J., a dispute arose between Angie and Mr. Monforton regarding how to manage the settlement funds for Dryden. Mr. Monforton proposed that Dryden’s portions of the settlement funds, being $980,000, be used to fund a structured settlement through Henderson Structured Settlements LP. In contrast, Angie wanted to invest the settlement funds in stocks and mutual funds. It was Mr. Monforton’s view that investing the settlement funds in stocks and mutual funds was not in Dryden’s best interests.

[30] In paragraph 3(a) of the judgment dated July 29, 2014, Nolan J. ordered that the settlement funds allocated for Dryden were ultimately to be paid to Henderson Structured Settlements LP in trust for the purchase of a structured settlement.

[31] Following the issuance of the judgment of Nolan J., the parties to the minutes of settlement worked toward agreement on a form of release, as contemplated by para. 4 of the minutes of settlement. The evidence before the court indicates that because Mr. Monforton was engaged in dealing directly with Angie, the firm’s client, he assigned an associate lawyer at his firm, Ms. Laura Pearce, to deal with the release and settlement documentation.

[32] On the record of evidence before me, it appears that a form of a draft release was prepared by Mr. Barry Chobatar of Henderson Structured Settlements LP, and that draft was forwarded by Ms. Pearce of Mr. Monforton’s office to Mr. Brian Foster, lead counsel for the defendant Andrew in the First Action. That draft release contained a standard “no claims-over” provision, pursuant to which the releasors were to agree that in consideration of the pay-out of the policy limits, the releasors would not make any claim against any other person or corporation who might claim contribution or indemnity against Andrew. In a subsequent email from Mr. Foster dated September 7, 2020, Mr. Foster advised that on August 27, 2014, he had approved the form of the draft release that had been sent to his office by Mr. Monforton’s office.

[33] The draft release was not executed by the plaintiffs.

[34] To be clear, the said draft release was not before the court when Nolan J. made the order of July 29, 2014, approving the minutes of settlement executed February 19, 2014.

[35] On the record of evidence before me, it appears that the conflict between Angie and Mr. Monforton over how to structure the settlement funds for Dryden ultimately gave rise to a larger conflict between counsel and client. Mr. Monforton remained counsel of record for the plaintiffs in the First Action until April 16, 2015, after which time the plaintiffs ultimately retained their current counsel of record, Mr. D. Joel Dick of the Howie, Sacks & Henry LLP firm.

[36] The issue in dispute on the Settlement Interpretation Motion concerns the status of the plaintiffs’ claims against the CP Rail defendants and Lakeshore, i.e., the non-settling defendants. The minutes of settlement provided that the plaintiffs accepted the payment of the insurance proceeds by Aviva as “full and final satisfaction” of any and all claims against Andrew, and that they agreed to “release Andrew Williams for any and all claims against him by them in this action.” It is the position of CP Rail that necessarily implicit in the plaintiffs’ agreement to release Andrew was an undertaking not to assert any legal claims against any other persons that might seek contribution and indemnity from Andrew. CP Rail submits that the draft release confirms its position, as it included an express “no claims-over” provision. Andrew and Lakeshore agree with the submissions of CP Rail on point.

[37] After being advised of CP Rail’s position, the plaintiffs brought the Settlement Interpretation Motion, seeking a declaration that the minutes of settlement and their undertaking to Andrew did not affect their right to seek the full amount of their damages from the non-settling defendants on a joint and several basis.

[38] By email correspondence sent August 17, 2022, Mr. Dick, counsel for the plaintiffs, advised Mr. Monforton of the Settlement Interpretation Motion and that it was scheduled to be heard in the week after Labour Day. Mr. Dick attached the factums of the responding parties on the Settlement Interpretation Motion, and he identified that CP Rail and Lakeshore were taking the position that the draft release supported their position that the plaintiffs had relinquished their rights to pursue the question of joint liability against them.

[39] Mr. Dick also advised Mr. Monforton that if the court accepted the position of the non-settling defendants, then the plaintiffs would, in all likelihood, issue a solicitor’s negligence claim against Mr. Monforton. In particular, Mr. Dick warned that, “I don’t think that the plaintiffs would have any choice but to issue a claim against your firm.”

[40] In response, Mr. Monforton brought the instant motion, seeking leave to intervene in the Settlement Interpretation Motion to support the position of the plaintiffs and oppose that of CP Rail and Lakeshore.

[41] The Settlement Interpretation Motion was originally scheduled to be heard during the week of September 6, 2022. By the time Mr. Monforton announced his intention to move for leave to intervene in the Settlement Interpretation Motion (on or about August 17, 2022), that motion had been fully briefed, and all parties had delivered their factums in anticipation of full argument of the motion. As a result of Mr. Monforton’s declaration of his intention to seek intervenor status, the Settlement Interpretation Motion was adjourned to be heard in May 2023, was then again adjourned to dates in August 2023, and was then further adjourned to May 2024.

[42] The Settlement Interpretation Motion has not been argued as of the date of writing.

[43] To be clear, the proposed intervenor does not seek to intervene in the trial of either action that arose out of the collision of June 10, 2012. Mr. Monforton seeks only to intervene as an added party on the Settlement Interpretation Motion.

Issues

[44] The following issues arise on this intervention motion:

a. Has Mr. Monforton satisfied at least one of the three conditions set out in subrule 13.01(1)? b. Should the court exercise its discretion under subrule 13.01(2) to permit Mr. Monforton to intervene as an added party on the Settlement Interpretation Motion?

[45] In my view, the latter question necessarily involves a consideration of whether the plaintiffs have waived solicitor-client privilege and whether Andrew has waived settlement privilege.

Analysis

The Legal Principles Applying to Intervention Motions

[46] There is no real disagreement amongst the parties as to the applicable legal principles.

[47] Under rule 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a non-party may seek to intervene in a proceeding as a party. The rule states:

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding; (b) that the person may be adversely affected by a judgment in the proceeding; or (c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

[48] I note in passing that on the motion before me, it was not seriously contested that rule 13.01 may have application to a situation where, as here, a proposed intervenor seeks to intervene in a motion. [7]

[49] It is common ground that rule 13.01 provides for a two-stage process. At the first stage, the proposed intervenor must satisfy at least one of the three conditions or requirements set out in subrule 13.01(1), and, for such purposes, the test is disjunctive. [8]

[50] However, the decision to add a proposed intervenor as a party to a proceeding under rule 13.01 is a discretionary one. It is not sufficient merely to fit oneself within the provisions of subrule 13.01(1). The proposed intervenor must still satisfy the court that the court should exercise its discretion to add them as a party to the proceeding. [9]

[51] Thus, even where a proposed intervenor satisfies one of the three conditions under subrule 13.01(1), at the second stage, the court must still consider whether to exercise its discretion to add the person as a party to the proceeding, having regard for all relevant considerations, including, the nature of the case, the issues that arise, whether the issues are essentially private or whether they involve some public interest component, the likelihood of the proposed intervenor making a useful contribution to the resolution of the issues, and whether the proposed intervenor’s participation would cause some unfairness or prejudice to the immediate parties. [10] Indeed, subrule 13.01(2) mandates that the court “shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding.”

[52] As such, the exercise of the court’s discretion under subrule 13.01(2) reflects a gate-keeping function. [11]

[53] Simply repeating the issues, evidence and argument put forward by the main parties to the application is not a “useful contribution.” Rather, the moving party must show that it has something to add or contribute to the resolution of the issues. [12] “No useful contribution can be offered by an intervenor who essentially repeats the position advanced by a party, even with a different emphasis.” [13] As Watts J.A. put it in Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), “[t]he ‘me too’ intervention provides no assistance.” [14]

[54] If the proposed intervener has a contribution to make, the court must still consider whether that intervention is sufficient to counterbalance the added “magnitude, timing, complexity and costs.” [15]

[55] The onus lies with the proposed intervenor to show that intervention is warranted. The burden on the proposed intervenor to intervene in a private dispute is heavier than in cases that involve constitutional issues or other broad public interests. [16]

[56] Indeed, the courts have repeatedly held that leave to intervene in a private lawsuit should be granted in “rare” cases only. [17] Speaking for the Divisional Court in Rare Charitable Research Reserve v. Chaplin (Div. Ct.), Wilson J. said: “[i]n private, as opposed to public litigation, the discretion to add parties should be exercised sparingly or rarely, depending upon the facts of this case.” [18]

Has Mr. Monforton Satisfied At Least One of the Three Conditions Set Out in Subrule 13.01(1)?

Does Mr. Monforton have an interest in the subject matter of the proceeding?

[57] Clause (a) of subrule 13.01(1) asks whether the proposed intervenor has an interest in the subject matter of the proceeding. The onus is on Mr. Monforton to establish that he has an interest in the subject matter of the Settlement Interpretation Motion.

[58] I am not satisfied that Mr. Monforton has satisfied his onus here.

[59] The subject matter of the Settlement Interpretation Motion involves the proper interpretation of the minutes of settlement executed February 19, 2014, and the court approval judgment of July 29, 2014. Mr. Monforton was not a contracting party to those minutes of settlement, nor a litigant in the proceeding before the court in which the settlement approval judgment was issued.

[60] I can certainly understand why Mr. Monforton may be impacted by the outcome of the Settlement Interpretation Motion, and I will turn to consider clause (b) presently. However, in my view, it is important to give meaning to both clause (a) and clause (b) of subrule 13.01(1) and be sensitive to the different purposes they serve. They are two separate clauses, and, in my view, one should not conflate their meaning.

[61] Of course, there may well be times where a proposed litigant has both an interest in the subject matter of the proceeding within the meaning of clause (a) and also may be adversely affected by a judgment in the proceeding under clause (b). That was the case in Trempe v. Reybroek (2002), 57 O.R. (3d) 786, 18 C.P.C. (5th) 184 (S.C.J.), where Molloy J. permitted the former lawyer for the defendant (Mr. Taylor) to intervene as an added party on the motion for judgment brought by the plaintiffs, finding that:

In my opinion, Mr. Taylor meets all three tests. He has an interest in the subject matter of the motion and may be adversely affected by the result reached in the motion. The central issue on the motion is whether he acted properly in consenting to Minutes of Settlement which purport to bind the defendants and, in particular, which purport to require Mr. Reybroek to move out of York Region. Depending on the result of that issue, he will either have no exposure to any liability (e.g. if it is found that the clause is enforceable and that he had actual instructions from the defendants to agree to it) or he may be exposed to liability to an action against him either by the Reybroeks or by Belair Direct. Thus, the test in clauses (a) and (b) of Rule 13.01 are met. [19] [Emphasis added.]

[62] In Trempe, the allegation was that the proposed intervenor/former lawyer, Mr. Taylor, did not have the authority to agree to a term in the settlement agreement (that required the defendant to move his residence outside York Region), and a determination of that issue would be dispositive of the potential case against the proposed intervenor. Hence Molloy J. found that the “central issue on [the plaintiffs’ motion for judgment] is whether he acted properly …”

[63] That is not the case here. It cannot be said here that the “central issue” on the Settlement Interpretation Motion is whether Mr. Monforton “acted properly.” The Settlement Interpretation Motion involves a contractual interpretation of the minutes of settlement and the settlement approval judgment. Whether Mr. Monforton did or did not “act properly” is not an issue in the Settlement Interpretation Motion, let alone is it the “central issue.”

[64] Trempe was simply a different set of circumstances. It is distinguishable from the case before me and is of no assistance to Mr. Monforton here.

Does a common question of law or fact exist between Mr. Monforton and one or more of the parties to the proceeding?

[65] Clause (c) of subrule 13.01(1) asks whether there exists a common question of law or fact in the Settlement Interpretation Motion and some other proceeding in which Mr. Monforton is involved or has an interest.

[66] Again, I am not satisfied that Mr. Monforton has discharged his onus here. For example, it was not suggested that Mr. Monforton was a party to minutes of settlement in some other proceeding where the language of the document was similar to the minutes here, such that, the court’s determination of the Settlement Interpretation Motion may impact the interpretation of the minutes of settlement in Mr. Monforton’s other proceeding.

[67] I note also that the language of clause (c) asks whether there “exists” a common question of law or fact. As I read it, clause (c) uses the present tense, and the inquiry is directly to currently existing circumstances. The question is not “might there exist a common question of law or fact at some point in the future?” Rather, the question is whether one “exists” at present.

[68] Mr. Monforton relies on the decision of Lederer J. in Rare Charitable Research Reserve v. Chaplin (S.C.J.). In that case, two solicitors sought to intervene in two applications arising out of an unusual real estate transaction, where the transfer of the subject property was subject to certain covenants and options. In the first court application, the applicants sought a declaration that the covenants and options were invalid and unenforceable. A second application was commenced, seeking a declaration that the covenants and options were all bona fide and in full force and effect.

[69] Significantly, two further civil proceedings were then commenced against the two solicitors who had advised the property owners and the transferee charity, alleging professional negligence.

[70] The two solicitors were given leave to intervene in the court applications, in part, because there was a common question of law and fact. [20] But again, in Rare Charitable, there was separate litigation already commenced against the lawyers dealing with the same issues, transaction, and alleged professional negligence. That is not the case here.

[71] I appreciate that in Trempe v. Reybroek, Molloy J. also found that clause (c) had been satisfied, even when no litigation had yet been commenced against the proposed intervenor/litigant there. However, given my conclusion on clause (a) below, I need not attempt to reconcile the competing interpretations of clause (c) here.

Is Mr. Monforton a person who may be adversely affected by a judgment in the proceeding?

[72] I accept that Mr. Monforton may be adversely affected by the court’s judgment in the Settlement Interpretation Motion. Mr. Monforton may be adversely affected by both the outcome of the Settlement Interpretation Motion and the final judgement in the First Action.

[73] In the event that this court determines the Settlement Interpretation Motion so as to, in effect, find that by entering into the minutes of settlement of February 2014, the plaintiffs gave up their claim against the non-settling defendants (i.e., CP Rail and Lakeshore) for joint and several liability, Mr. Monforton may be exposed to a negligence claim equal to the difference between the non-settling defendants’ joint and several liability versus only their several liability. As the plaintiffs have sought over $9 million in damages in the First Action, the potential exposure for Mr. Monforton in any professional negligence action is significant. As such, the judgment at the Settlement Interpretation Motion may adversely affect Mr. Monforton by exposing him to liability to his former clients.

[74] The example that Mr. Van Bakel offered during oral argument to illustrate the impact of such an interpretation on Mr. Monforton is instructive. If one assumes for the moment that in the court’s final judgement in the First Action, the court ultimately assesses the plaintiffs’ damages in the total amount of $5 million, finds Andrew to be 90 per cent at fault for the collision, and finds the non-settling defendants to be, collectively, 10 per cent at fault, then the non-settling defendants would be liable for payment of $500,000. In the result, on that interpretation of the minutes of settlement, given the settlement of the claims against Andrew for $1 million, Mr. Monforton would be exposed to liability of some $3.5 million in damages.

[75] CP Rail argues that such an outcome depends on a number of unknown conditions and variables. That is true. But again, in interpreting the scope of rule 13.01, the language of the provisions is important. Clause (b) of subrule 13.01(1) uses the term “may” – has it been shown that the potential intervenor “may” be adversely affected by a judgment in the proceeding. The language of the provision does not require a showing that the intervenor will certainly be adversely affected. Absolute certainty is not required. It says only that the intervenor may be adversely affected.

[76] CP Rail acknowledged in its factum that if the Settlement Interpretation Motion is determined in favour of the non-settling defendants, the plaintiffs “may choose to pursue a claim against Mr. Monforton alleging negligence” in his negotiation of the minutes of settlement and release. [21] [Emphasis in original.] In oral argument, Mr. Rae submitted that all we have here is “the spectre” of a potential claim; he used the term “highly speculative.”

[77] Respectfully, I have a different view. I am reminded of the email correspondence dated August 17, 2022 – the week before the Settlement Interpretation Motion was originally scheduled to be heard – sent to Mr. Monforton by Mr. Dick, current counsel for the plaintiffs in the First Action, wherein Mr. Dick placed Mr. Monforton on notice in the following terms:

That said you may wish to raise this issue with LawPro because if the Court ever somehow found that the release circulated by your office after the Court Approval modified the settlement as they suggest[,] then I don’t think the plaintiffs would have any choice but to issue a claim against your firm. Again I can’t imagine the Court doing what the defendants are asking but I did want to draw it to your attention. [Emphasis added.]

[78] For myself, I would not characterize Mr. Dick’s warning as highly speculative. I take him at his word.

[79] In the result, I find that Mr. Monforton has satisfied his onus of showing that he may be adversely affected by the court’s judgment in the Settlement Interpretation Motion.

Should the Court Exercise Its Discretion under Subrule 13.01(2) to Permit Mr. Monforton to Intervene as an Added Party on the Settlement Interpretation Motion?

Nature of the Case and the Issues

[80] In considering whether to exercise the court’s discretion to permit the non-party Mr. Monforton to intervene on the Settlement Interpretation Motion, I am reminded of the comments of Trotter J.A. in the 2505243 Ontario Limited (ByPeterandPaul.com) v. Princes Gates Hotel Limited Partnership, 2022 ONCA 700 [Princes Gates] case, that:

As a general matter, the nature of the dispute between the parties on appeal is crucial to this determination. In Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Watt J.A. said, at para. 23:

The nature of the case is an important factor. Where the litigation in which the intervention is sought is a private dispute, rather than a public prosecution pitting an individual against the state, the standard to be met by the proposed intervenor is more onerous or more stringently applied …

This approach has been followed in other decisions of this court: see Foxgate Development Inc. v. Jane Doe, 2021 ONCA 745, 159 O.R. (3d) 274, at paras. 7, 39; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 11. [22]

[81] The Settlement Interpretation Motion arises out of a private dispute. The core issue involves the proper contractual interpretation of the minutes of settlement of February 2014 and the settlement approval judgment of July 2014. The proposed intervenor was not a party to the minutes in dispute, nor a litigant to the proceeding that resulted in the judgment. Even as counsel, Mr. Monforton has not been involved in the First Action for almost a decade.

The Likelihood of the Proposed Intervenor Making a Useful Contribution to the Determination of the Issues on the Settlement Interpretation Motion

[82] The likelihood and nature of the contribution that may be made by a proposed intervener is another important consideration. Mr. Monforton must be able to demonstrate that he is able to make a useful contribution to the Settlement Interpretation Motion. Again, as Watt J.A. said in Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), in the end, “a proposed intervenor must have more to offer than mere repetition of the position advanced by a party. The ‘me too’ intervention provides no assistance.” [23]

[83] In terms of the positions to be adopted and legal submissions to be made on the Settlement Interpretation Motion, I think it is fair to expect that the legal submissions that would be made by Mr. Monforton will substantially echo, if not repeat, the submissions and positions that will be advanced by the plaintiffs. Certainly, Mr. Monforton has not established that his legal argument is going to be unique and distinct from the submissions that will be made by the plaintiffs, and I did not understand Mr. Van Bakel to argue that the special contribution that Mr. Monforton can make to the Settlement Interpretation Motion is the nature of his legal submissions. The plaintiffs are represented by experienced counsel, and it should be remembered that it was the plaintiffs who brought the Settlement Interpretation Motion.

[84] Rather, it was argued that the special contribution that Mr. Monforton can bring to the determination of the Settlement Interpretation Motion is the evidence that, he says, he has to offer. In paras. 14-15 of the affidavit that Mr. Monforton swore on September 30, 2022, in support of his intervention motion, Mr. Monforton described that evidence in the following terms:

I am presently not at liberty to provide evidence on the circumstances surrounding the signing of the Minutes of Settlement, Justice Nolan’s Judgment, or the Draft Release because the plaintiffs have not waived solicitor-client privilege over our communications. However, my file contains relevant correspondence and memos to file which provide insight into Angie Williams’, and my own, understanding of the terms of settlement. Furthermore, my file contains correspondence between my office and Mr. Foster, surrounding the signing of the Minutes of Settlement, Justice Nolan’s Judgment, and the Draft Release.

Should the within motion for leave to intervene be granted, I intend to tender an affidavit providing a full picture of the surrounding circumstances known to the parties at the relevant time frames. [Emphasis added.]

[85] I appreciate that in describing the evidence in his possession, Mr. Monforton was constrained from providing a full description in his affidavit because of the privileges that, he acknowledges, attach to that evidence.

[86] That gives rise to two observations. First, I take it that Mr. Monforton does not have any relevant evidence in his possession that is not covered by some type of privilege. I say that for two reasons. First, because that is what Mr. Monforton has told us: “I am presently not at liberty to provide evidence …” And second, because presumably if Mr. Monforton did have some relevant evidence that was not subject to solicitor-client or settlement privilege, he would have disclosed that already. Again, the onus is on Mr. Monforton to establish that he can make some useful contribution.

[87] The second observation is that it is apparent that the ability of Mr. Monforton to establish that he can make some useful contribution to the determination of the issues on the Settlement Interpretation Motion depends upon the question of whether the solicitor-client privilege and settlement privilege have been waived.

Has Solicitor-Client Privilege Been Waived?

[88] While, as I have said, the plaintiffs here support the intervention of Mr. Monforton, they are also very clear that they are not waiving solicitor-client privilege over any documents or evidence. It is trite law that the privilege belongs to the client and can only be waived by the client. [24]

[89] That said, Mr. Monforton argues that the plaintiffs have impliedly waived their solicitor-client privilege.

[90] Respectfully, I find no merit in this argument.

[91] It is common ground that where the client commences an action against their (presumably) former lawyer alleging professional negligence in the giving of legal advice, the solicitor-client privilege is – for the purposes of that action – implicitly waived with respect to communications passing between the lawyer and the client. [25] However, the plaintiffs have not commenced any action against Mr. Monforton here. Moreover, the determination of the Settlement Interpretation Motion does not require or depend on any finding of professional negligence on the part of Mr. Monforton.

[92] Mr. Monforton argues that by even bringing “the Settlement Interpretation Motion in which the court is being asked to interpret a contract, which requires the court to consider the state of mind of the contracting parties, the plaintiffs are placing their state of mind in issue, and therefore, privilege has been waived with respect to the legal advice that shaped his state of mind.” [26] No authority was presented in support of this submission. I do not accept the submission.

[93] Confronted with the disagreement between the parties as to the interpretation of, inter alia, the settlement agreement, the plaintiffs were well within their rights to bring the instant motion and seek the determination of the court as to the proper interpretation of the documents. Any one of the defendants might just as easily have brought the Settlement Interpretation Motion. If that were the case, I cannot think that Mr. Monforton would be taking the position that a motion brought by a defendant somehow constitutes an implicit waiver of the solicitor-client privilege belonging to the plaintiffs.

[94] Further, I have some difficulty with Mr. Monforton’s suggestion that by bringing the Settlement Interpretation Motion, the “plaintiffs are placing their state of mind in issue.” The Settlement Interpretation Motion seeks an interpretation of the settlement documents. The jurisprudence is clear and unequivocal that evidence of the contracting parties’ subjective intentions or subjective state of mind is irrelevant and inadmissible to inform the interpretation of a written contract. [27] Contractual interpretation is an objective exercise. [28]

[95] Moreover, I would have thought that, in terms of what triggers the implied waiver of the solicitor-client privilege, it is not the client “placing their state of mind in issue,” it is the client’s placing in issue the legal advice they received from the lawyer that gives rise to the waiver. However, given my conclusions above, it is not necessary to come to a definitive conclusion on this specific (and tangential) point.

[96] I well appreciate the argument of Mr. Van Bakel in reply that, despite the constrained language of para. 14 of his affidavit, Mr. Monforton is not attempting to adduce evidence of the subjective intentions of the parties; rather, he is trying to adduce evidence of “all the surrounding circumstances.” [29] However, that does not get around the waiver issue. Whatever evidence Mr. Monforton may have – whether evidence of the subjective intentions of the parties or evidence of the surrounding circumstances – that evidence is subject to privilege and is inadmissible unless the court finds that the privilege has been waived.

[97] Therefore, for the reasons set out above, I find that the plaintiffs have not impliedly waived their solicitor-client privilege.

Has Settlement Privilege Been Waived?

[98] Mr. Monforton also states that his file contains correspondence between himself and Mr. Brian Foster surrounding the preparation and signing of the settlement documents.

[99] However, there can be no doubt that the communications between Mr. Monforton and Mr. Foster that culminated in the drafting and execution of the settlement documents are subject to settlement privilege.

[100] The law is clear that settlement privilege is held jointly by both parties to the settlement communication, and neither can unilaterally waive that privilege. [30] Furthermore, as with solicitor-client privilege, settlement privilege belongs to the clients and cannot be waived by the lawyers conducting the negotiations acting alone and without their clients’ instructions. The onus of establishing a waiver of privilege rests with the party asserting the waiver. [31]

[101] Thus, settlement privilege renders inadmissible the communications between Mr. Monforton and Mr. Foster unless all of Angie, the surviving children’s current litigation guardian, and Andrew agree to waive the settlement negotiation privilege protecting those communications.

[102] There is no evidence that Angie has waived the privilege. There is no evidence that Ms. Kim Ann Barrette, the litigation guardian, has waived the privilege on behalf of the minor plaintiffs. And it is certain, as Ms. Davenport repeatedly advised on behalf of her client, that Andrew does not waive the privilege.

[103] Again, Mr. Monforton argues that, in the circumstances, the settlement privilege attaching to those communications has been impliedly waived. [32] Respectfully, I disagree.

[104] Mr. Van Bakel points to email correspondence dated September 7, 2020, sent by Mr. Foster, as counsel for Andrew, to counsel for the other parties in the First Action, a copy of which was attached to an affidavit contained in Lakeshore’s responding motion record on the Settlement Interpretation Motion. [33] In that email, Mr. Foster states as follows:

For reasons not worth discussing today, I have not been able to access/find certain documents that I believe were copied to me before and after the judgment of Madame Justice Nolan in 2014.

I have maintained throughout this process that the documents that are in my possession support the conclusion that the plaintiffs – with appropriate approval – settled damages with Mr. Williams. It has been my position that such settlement included surrendering all rights of action as against him and Aviva Insurance Company with respect to damages. By implication, the plaintiffs have agreed to “indemnify” or “surrender” any excess damage award as against him. [34]

[105] Mr. Van Bakel submits that the second paragraph of the September 7, 2020, email plainly sets out the subjective intentions of Mr. Foster, counsel for Andrew. He argues strenuously that the inclusion of the email in the responding motion record of Lakeshore on the Settlement Interpretation Motion constitutes an implicit waiver of the settlement privilege by the defendants because it would be manifestly unfair to Mr. Monforton for the court to permit the defendants to adduce evidence of the subjective intention of Mr. Foster, counsel for the defendant Andrew, without also permitting Mr. Monforton to adduce evidence of the subjective intentions of Angie and Mr. Monforton, then counsel for the plaintiffs. At the hearing of the intervention motion, I characterized this argument as Mr. Van Bakel’s “sauce for the goose” submission.

[106] There is no merit in the submission. First, it is not clear to me how, by including a copy of the email in its responding motion record, Lakeshore – who was not a party to the settlement in question – can be said to have waived the settlement privilege belonging to the contracting parties.

[107] Second, even if it were thought that the actions of the defendant Lakeshore should somehow implicate the position of all the defendants, it remains the case that there is no evidence before the court that either Angie or the litigation guardian of the minor plaintiffs have waived the settlement privilege on behalf of the plaintiffs.

[108] And third, upon reflection, I have come to the conclusion that the proper approach to the impugned evidence of the September 7th email here is reflected in Mr. Rae’s “two wrongs do not make a right” response. That is, if the evidence of Mr. Foster’s subjective intentions as set out in his email of September 7, 2020, is inadmissible on the Settlement Interpretation Motion, then surely the proper response cannot be to compound the problem by admitting further inadmissible evidence. I agree.

[109] However, not to be outdone in the exchange of metaphorical arguments, Mr. Van Bakel argued in reply that one cannot “put the toothpaste back in the tube.” Sure, we can. This is not a jury trial. It is commonplace for a judge to be called upon to disregard evidence that they have heard but has been ruled inadmissible. In my view, that is how the second paragraph of Mr. Foster’s email of September 7, 2020, should be treated. I shall disabuse myself of that evidence. If counsel would feel more comfortable with the suggestion of Ms. Davenport that the offending paragraph be redacted, that is something that we can address at the hearing of the Settlement Interpretation Motion. But the inadmissible evidence of Mr. Foster’s subjective intentions is not a reason to compound the problem by adducing further inadmissible evidence from Mr. Monforton as to his (and/or Angie’s) subjective intentions.

[110] Mr. Van Bakel made the repeated submission that the court should have a full evidentiary record before it on the Settlement Interpretation Motion and that primacy should be given to the court’s truth-seeking function.

[111] But the obstruction of the court’s truth-seeking function is the very nature of privilege. An evidentiary privilege reflects the right of a party not to disclose evidence that may be relevant to the adjudication of a dispute. Its very effect is to deny the trier of fact access to information that might assist the adjudicator to ascertain the truth. As Professor Robert J. Sharpe, as he then was, once said in a 1984 article, “[t]he effect of a rule of privilege is to shut out the truth.” [35] The Supreme Court of Canada has recognized the very same concept:

The common law principles underlying the recognition of privilege from disclosure are simply stated. They proceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth”: Trammel v. United States, 445 U.S. 40 (1980), at p. 50. [36]

[112] Therefore, on the basis of the record before me, I conclude that Mr. Monforton has failed to discharge his onus to show that the privileges in issue here have been waived. As a result, in the absence of a waiver of privilege, I also find that Mr. Monforton has failed to satisfy this court that the proposed intervenor is in a position to make a useful contribution to the determination of the issues on the Settlement Interpretation Motion.

Would the Proposed Intervenor’s Participation Cause Some Undue Delay, Unfairness, or Prejudice to the Immediate Parties?

[113] Even if I were convinced, which I am not, that Mr. Monforton could make a useful contribution to the determination of the issues on the Settlement Interpretation Motion, I would still need to consider whether the proposed intervenor’s participation would cause some unfairness or prejudice to the immediate parties.

[114] The reality is that, as Mr. Rae has emphasized and Mr. Van Bakel has conceded, the proposed intervention has already delayed this proceeding.

[115] The Settlement Interpretation Motion was scheduled to be heard the week commencing September 6, 2022. The motion was fully briefed and ready to be argued by the parties. When the possible intervention of Mr. Monforton was raised in late August 2022, perhaps prompted by Mr. Dick’s email correspondence to Mr. Monforton of August 17, 2022, and was then canvassed at the case conference before me on August 31, 2022, it was clear that the hearing of the Settlement Interpretation Motion had to be adjourned.

[116] For a variety of reasons, the hearing of the Settlement Interpretation Motion has since been re-scheduled on two or three occasions. It is currently scheduled for hearing on May 27-28, 2024.

[117] As such, the delay of over one year and eight months that the potential intervention of Mr. Monforton has already caused to the hearing of the Settlement Interpretation Motion is of significant concern to the court.

[118] That concern for the delay in the hearing of motion is exacerbated by the seeming “eleventh hour” intervention effort by Mr. Monforton. It is not clear to me – and it is certainly not explained in the evidence – why the question of Mr. Monforton’s potential intervention in the motion to interpret the settlement documents of 2014 was not raised earlier than some two weeks before the motion was set to be argued in September 2022. I appreciate that the email correspondence of August 17, 2022, from Mr. Dick to Mr. Monforton has attracted considerable attention on this intervention motion, but of course the full exchange of correspondence between counsel is not in the record before me (nor should it be). Simply put, I have some difficulty accepting that Mr. Dick’s email of August 17, 2022, was the first time Mr. Monforton was made aware of the issue. While I appreciate that I do not have hard evidence on point before me, I find it difficult to simply ignore the submissions of Mr. Thompson, made as an officer of the court, that “the issue of the release” has been “kicking around” before the court and “festering” since August 2014. Again, I appreciate that I have no hard, admissible evidence to that effect before me. However, it is certainly clear from the record before me that – at the very least – at least as far back as Mr. Foster’s email of September 7, 2020, the parties clearly knew that the interpretation of the 2014 settlement documents was in issue – and could potentially result in a judgment that may adversely affect Mr. Monforton. And yet, apparently, still nothing came for another two years.

[119] The eleventh hour intervention effort is a concern for this court and is one that I must weigh in considering whether to exercise my discretion to permit Mr. Monforton’s eleventh hour intervention request.

[120] While I am not certain, on the record of evidence before me, as to the precise date when Mr. Monforton first knew that questions were being raised as to the proper interpretation of the 2014 settlement documents, I am certain that if this court were to grant leave to Mr. Monforton to intervene as an added party on the Settlement Interpretation Motion, the hearing of that motion would need to be re-opened and further delayed.

[121] It is plain from the argument on the intervention motion – and from the clear claim of Mr. Monforton in his notice of motion – that he seeks to intervene as an added party to the Settlement Interpretation Motion in order to, inter alia, “file affidavit evidence.” Mr. Monforton has been very clear: he wants to be able to file affidavit evidence as to the contents of his file (subject to the privilege questions).

[122] To my mind, it is just as clear that if this court were to grant Mr. Monforton leave to intervene as an added party on the Settlement Interpretation Motion to adduce further affidavit evidence, then the responding parties would wish to avail themselves of their right to file responding affidavits to address the contents of Mr. Monforton’s affidavit. They, of course, will need some further reasonable period of time to receive and consider Mr. Monforton’s affidavit as an intervening added party and then file their own responding affidavits. In turn, as an added party with full participatory rights, which is the status sought by Mr. Monforton, he would then be entitled further time to prepare and file reply affidavit material.

[123] In such circumstances, there is no doubt that the hearing of the Settlement Interpretation Motion, presently rescheduled for May 27-28, 2024, would have to be further adjourned. Experience on this file demonstrates that any further adjournment would almost certainly result in a delay of several months before a new hearing date could be set. There are five or six sets of counsel’s schedules that must be accommodated and reconciled, in addition to my own sitting schedule. In my view, if the May 27-28, 2024, dates were adjourned, we would be doing exceedingly well if were able to find mutually available dates before 2025 for the rescheduled hearing of the Settlement Interpretation Motion, which, again, was fully briefed and ready to be argued the week of September 6, 2022.

[124] To my mind, the prospect of the further adjournment of the Settlement Interpretation Motion until, at the very best, late in 2024 or, more realistically, sometime in 2025 – when it was originally scheduled for hearing the first week of September 2022, and was fully briefed and ready to go – represents undue delay and resulting prejudice to the other parties on the motion and their counsel.

[125] I therefore find that the responding/opposing parties would suffer undue delay and prejudice if the proposed intervention of Mr. Monforton were permitted.

[126] But, of course, the intervention of Mr. Monforton would delay not only the determination of the issues on the Settlement Interpretation Motion but also the trial of the First Action on its merits. And that implicates the rights of the plaintiffs and, in particular, the minor plaintiffs.

[127] Again, this tragic collision occurred in June 2012. We are now almost 12 years past the date of loss. In my view, any delays in the adjudication of the First Action on its merits would prejudice, first and foremost, the minor plaintiffs. On the record of evidence before me, I am not satisfied that Mr. Monforton’s requested intervention should be allowed to prejudice the interests of the minor plaintiffs, Mr. Monforton’s former clients, to a trial without further delay.

[128] In the result, although I am satisfied that Mr. Monforton may be adversely affected by a judgment in the Settlement Interpretation Motion, I am persuaded that there are other factors that speak loudly against allowing him to intervene as an added party. The discretion of the court to allow a non-party to intervene as an added party in a private dispute is to be exercised sparingly or rarely. On balance, Mr. Monforton has not persuaded me that this is one of those rare cases where intervenor status should be granted in a motion involving a private dispute.

[129] Having concluded that Mr. Monforton’s request for intervenor status must be dismissed, if Mr. Monforton does indeed have relevant (non-privileged) information to share with the court on the Settlement Interpretation Motion, it seems to me that the provisions of rule 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 remain available to the parties to the motion, including, in particular, subrule 39.03(4), which provides that a witness may be examined at the hearing of a motion, as, I believe, Mr. Thompson was the first to suggest.

Conclusion

[130] For all of these reasons, the motion of the proposed intervenor is dismissed.

[131] My presumptive view is that the responding/opposing parties were the successful parties on the intervention motion and should have their costs of the motion. However, counsel for the interested parties should have an opportunity to make submissions to the court on point.

[132] If counsel are unable to agree on the question of costs, they may file brief written submissions with the court, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:

a. The responding parties shall deliver their submissions within thirty (30) days following the release of these reasons. b. The proposed intervenor shall deliver his submissions within twenty (20) days following service of the submissions of the responding parties, whichever is latest. c. The responding parties shall deliver their reply submissions, if any, of no more than three (3) double-spaced pages, within five (5) days following service of the proposed intervenor’s submissions. d. If any party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the court may proceed to make its determination in the absence of their input or give such directions as the court considers necessary or advisable.

Original signed by “J. Paul R. Howard”

J. Paul R. Howard

Justice

Released: May 13, 2024