Superior Court of Justice – Ontario

Court File No.: CV-21-77
Date: 2025-03-12

Between:
Robyn Lynn Minifie, Plaintiff

And:
Lawrence Paquette, The Roman Catholic Episcopal Corporation of the Diocese of London in Ontario, and Windsor-Essex Catholic District School Board, Defendants

Before: Ranjan K. Agarwal

Counsel:
Aron Zaltz, for the plaintiff
Giovanna Asaro, for the defendant The Roman Catholic Episcopal Corporation of the Diocese of London in Ontario (incorrectly named Roman Catholic Diocese of London in the title of proceedings)
No one appearing for the defendants Lawrence Paquette and Windsor-Essex Catholic District School Board

Heard: 2025-03-03

ENDORSEMENT

I. INTRODUCTION

[1] The plaintiff Robyn Lynn Minifie alleges that the defendant Lawrence Paquette, a local priest and schoolteacher, sexually assaulted her when she was 5 years old. Paquette died a long time ago. Minifie recently sued Paquette, and the defendants The Roman Catholic Episcopal Corporation of the Diocese of London in Ontario and the Windsor-Essex Catholic District School Board, for tort damages.

[2] The Diocese denies that Minifie was sexually assaulted, or that it owed her a duty of care.

[3] Minifie moves for disclosure and production of documents from the Diocese’s investigation of Paquette. The Diocese opposes this request on the grounds of relevance and litigation privilege.

[4] In support of her motion, Minifie relied on a pre-trial conference brief filed by the Diocese in 2011 in another proceeding. She got the brief from the court file for that matter. The Diocese moves for a declaration that the brief is privileged. Both motions were heard at the same time.

[5] For the reasons discussed below, I endorse an order that:

• the Diocese shall provide Minifie with particulars of the documents from the investigation;
• if necessary, the court shall inspect the documents to determine the validity of the Diocese’s claims;
• the pre-trial conference brief is settlement privileged;
• Minifie’s lawyers shall destroy their copy of the brief and the court shall return the brief in the court file to the Diocese; and
• any documents filed in this proceeding that contain the brief shall be returned to the parties, and the parties shall file and upload redacted copies of the document.

II. BACKGROUND

[6] Minifie sued Paquette, the Diocese, and the Board in May 2021. Minifie alleges that Paquette sexually assaulted her in the late 1960s or early 1970s. Paquette worked for the Diocese as a priest and for the Board as a teacher. Minifie claims that the Diocese and the Board were negligent in failing to prevent or stop the abuse.

[7] The Diocese defended the action in February 2024. It denies any liability to Minifie, and puts her “to the strict proof thereof.”

[8] The parties didn’t agree on a discovery plan. Minifie and the Diocese served draft affidavits of documents.[^1] Schedule B of the Diocese’s draft affidavit doesn’t “list and describe…all documents relevant to any matter in the action” and the grounds for the Diocese’s privilege claim. Instead, it simply lists several class privileges.

[9] Minifie examined the Diocese for discovery in April 2024. At the examination, Minifie asked the Diocese’s representative about investigations into other allegations against Paquette: “In response to the various civil lawsuits which have been brought in respect of allegations against Father Paquette, has the Diocese done any investigation as to whether these allegations were founded?” The Diocese refused to answer the question on the ground of relevance.

[10] After the examination, Minifie found an article published in the London Free Press in October 2008. In that article, Mark Adkinson, a spokesperson for the Diocese, talked about an investigation: “When we received an allegation against Fr. Lawrence Paquette for the first time in January 2008, we conducted an investigation, informed our parish communities and made an appeal for anyone with information to come forward.”

[11] In September 2024, Minifie moved for disclosure and production of the documents from the investigation.[^2]

[12] The Diocese refused to produce documents from the investigation on the ground of litigation privilege. An articling student at the Diocese’s law firm[^3] deposed that:

• a civil claim was started against the Diocese in January 2008, which is when it first learned about the allegations against Paquette
• Mr. Adkinson wrote to the parishioners asking them for information about the allegations
• any information about Paquette after January 2008 “came to the Diocese by way of the further lawsuits that were started”
• nothing has been found or located from then “by way of an ‘investigation’” that isn’t litigation privileged

[13] In oral submissions, the Diocese’s lawyer suggested that the “investigation” documents are only documents from other lawsuits against the Diocese.

[14] In November 2024, Minifie also moved for disclosure and production of any documents “from the 10 other civil lawsuits” brought against the Diocese related to Paquette. The basis for Minifie’s request was the Diocese’s pre-trial conference brief, dated March 20, 2011, from an action in London (Lozon v The Roman Catholic Episcopal Corporation of the Diocese of London in Ontario, Court File No. 60036). The brief is 16 paragraphs; no documents are attached.

[15] The Diocese contended that the brief was privileged. It demanded that Minifie remove the brief from both the London and Orangeville court files, and destroy her copy. At first, Lozon’s lawyer also objected to Minifie’s possession of this brief. Minifie agreed to redact several paragraphs from the brief, which satisfied the lawyer.

III. ANALYSIS AND DISPOSITION

[16] By the motion hearing, the issues in dispute narrowed. On the investigation documents, the parties agree that the court should inspect the documents. That said, Minifie seeks particulars of the documents. The Diocese disagrees.

[17] On the pre-trial conference brief, Minifie advised that: (a) her lawyer obtained the brief from the court; and (b) the brief hasn’t been produced to anyone outside her lawyer’s law firm (even she hasn’t seen it). The Diocese agreed to produce the pleadings from any other actions started against it related to Paquette. Minifie advised the court that she’s only seeking to rely on paragraph 7 of the brief.

A. Issue #1: Should Minifie get particulars of the investigation documents?

[18] The Diocese, at examinations, claimed that the investigation documents were irrelevant. Then, in response to Minifie’s motion, it argued that the documents were privileged. If a party claims privilege over a relevant document, it doesn’t need to be produced to the adverse party. That said, where privilege is claimed for a document, the court may inspect the document to determine the validity of the claim. See Rules of Civil Procedure, r 30.04(6).

[19] In oral submissions, the Diocese submitted that some documents may be covered by the deemed undertaking rule. All parties and their lawyers are deemed to undertake not to use evidence or information obtained under documentary discovery or examination for discovery for any purposes other than those of the proceeding in which the evidence was obtained. See Rules of Civil Procedure, r 30.1.01(3). There are several exceptions, including evidence filed with the court or to impeach the testimony of a witness in another proceeding. Also, the court can order that the undertaking doesn’t apply. See Rules of Civil Procedure, r 30.1.01(8).

[20] The lack of precision at this stage is because Minifie and the court don’t know what the documents are, and the Diocese’s lawyer was being careful so as not to disclose their contents. Mr. Adkinson’s letter and public statements would suggest that there was an investigation. In other words, the Diocese interviewed people who knew about the claims or gathered documents about the allegations. But, at the motion, the Diocese’s lawyer seemed to suggest that, in fact, all of the “investigation” documents are papers from the other lawsuits, like pleadings and oral discovery transcripts.

[21] Given the timing of Mr. Adkinson’s comments, that seems unusual. The Diocese learned about the allegations in January 2008 when it was first sued. Mr. Adkinson wrote to the parishioners on January 31, 2008. Then, in October 2008, he told the newspaper that the Diocese had “conducted an investigation”. One inference from Mr. Adkinson’s words is that the Diocese investigated Paquette sometime between being sued and writing to the parishioners. It also seems unlikely, given the pace of civil litigation, that 10 months after the lawsuits were started, Mr. Adkinson’s reference to the investigation was only about pleadings or discovery.

[22] In any event, the parties agree that the court should inspect the documents. Though the inspection power under rule 30.06 is for privileged documents, the power can be expanded to include documents that a party claims are irrelevant or immaterial. See, e.g., Rules of Civil Procedure, r 30.10(3), which allows the court to inspect a non-party’s documents for relevance and necessity.

[23] That all said, the inspection power, and the adversarial process, relies on the other party having some information about the documents. For privilege claims, the adverse party would have a list and description of all of the documents and the grounds for the privilege claim. See Rules of Civil Procedure, r 30.03(2)(b). The description of documents in an affidavit of documents over which privilege is claimed must be sufficient “to enable a court to make a prima facie decision over whether the claim for privilege has been established” but it’s unnecessary “to go so far as to give an indirect discovery”. See Automax v GMAC, 2012 ONSC 1407, paras 15-16. Minifie’s lawyer must be able to appraise the privilege claim.

[24] For other documents, where a party is claiming that they’re irrelevant or immaterial, the adverse party would have some information about the document to argue its relevance (if not the document itself). Usually, when a party objects to producing a document because it’s irrelevant, it doesn’t object to the other side seeing the document. The objection is to the use of it on discovery or at trial.

[25] As a result, I endorse an order that the Diocese shall, on or before April 30, 2025, serve on every other party an affidavit of documents that lists and describes all documents from the investigation. If the Diocese claims privilege, irrelevancy, lack of materiality, or is relying on the deemed undertaking rule, the schedule shall state the grounds for the claim. The document’s description must include the date, type of document, author, recipient, and a brief description of the subject-matter if it’s not obvious from the type of document.

[26] Minifie shall advise the Diocese, on or before May 21, 2025, whether it seeks production of any of the documents. If the Diocese still refuses production, Minifie may schedule a virtual case conference with me through the Orangeville trial coordinator to timetable next steps.

B. Issue #2: Is the pre-trial conference brief privileged?

[27] One purpose of a pre-trial conference is to provide for an opportunity for any or all of the issues in a proceeding to be settled without a hearing. See Rules of Civil Procedure, r 50.02(1); Bell Canada v Olympia & York Developments Ltd., 1994 ONCA 239, at para 35. The parties are required to file a pre-trial conference brief. Though not required by the rules, the parties often disclose information about their settlement position in the brief, including offers to settle and admissions or compromises they’ll make to settle the case.

[28] No communication shall be made to the judge presiding at the hearing of the proceeding or a motion with respect to any statement made at a pre-trial conference. See Rules of Civil Procedure, r 50.09. The “evidence [of what occurred at a pre-trial conference] and what flowed from it” are irrelevant at trial. See Bell Canada, at para 36.

[29] The pre-trial conference briefs, and the parties’ communications with the pre-trial conference judge, are often characterized as settlement privileged or “without prejudice”. Settlement privilege is a common law evidentiary rule that applies to settlement negotiations regardless of whether the parties have expressly invoked it. See Union Carbide Canada Inc. v Bombardier Inc., 2014 SCC 35, para 1. Settlement privilege covers both the settlement negotiations (i.e., the “admissions, offers, and compromises made in the course of negotiations”) and the concluded agreement. See Sable Offshore Energy Inc. v Ameron International Corp., 2013 SCC 37, para 18.

[30] The privilege belongs to both parties, and can’t be unilaterally waived by either one. See Canadian Flight Academy Ltd. v Oshawa (City), 2024 ONSC 2756, para 11.

[31] The Diocese’s brief, and specifically paragraph 7, is settlement privileged. The admission that Minifie wants to rely on was made to try to settle that case. It wasn’t aimed at the trial management purpose of pre-trial conferences.

[32] This privilege extends to production to other parties to the negotiations and “to strangers”. See Middelkamp v Fraser Valley Real Estate Board, para 20, cited with approval in Sable, at para 16. In that case, the plaintiff sued the defendant for anti-competitive conduct. Because of the plaintiff’s complaint, the defendant was charged criminally. The defendant eventually resolved the charges. The plaintiff requested disclosure of the settlement negotiations. The B.C. Court of Appeal refused production on the basis that the communications were privileged between the Crown and the defendant.

[33] So too here.

[34] When the Diocese filed its pre-trial conference memorandum in the Lozon matter, it couldn’t have known that, 15 years later, someone else would try to use its statements against it. If settlement privilege can be breached in this way, parties will be discouraged from saying anything to try to settle the case. They would rightly fear that those admissions could be used against them years later in different litigation. At the very least, their written briefs will be so devoid of useful content that it will be difficult for the court and the parties to use their time efficiently. The purposes of pre-trial conferences would be seriously undermined.

C. Issue #3: Is the memorandum still admissible?

[35] There are exceptions to this privilege. The adverse party must show “a competing public interest outweighs the public interest in encouraging settlement”. These interests include “allegations of misrepresentation, fraud or undue influence” and “preventing a plaintiff from being overcompensated”. See Sable Offshore, at para 19.

[36] First, Minifie relies on the open court principle. Court proceedings, which includes documents filed for court proceedings, are presumptively open to the public. See Sherman Estate v Donovan, 2021 SCC 25, para 37.

[37] In support of this argument, Minifie points to rule 50.09 and the cases decided under that rule. Minifie submits that rule 50.09 only bars disclosure of statements, not documents, made to the pre-trial conference judge. She says the brief isn’t a statement so it should be available to the public. Minifie relies on Lyons Estate v Freeman, 2017 ONSC 533. In that case, the plaintiff objected to the defendant introducing evidence about a defence that the plaintiff said it had no notice of. Justice Corthorn, the trial judge, allowed the defendant to rely on an excerpt from its pre-trial conference brief to respond to the motion.

[38] I disagree with Minifie’s submission. Minifie misunderstands rule 50.09. That rule bars any person from telling another judge in the proceeding what happened at the pre-trial conference. The purpose of rule 50.09 is to maintain the confidentiality of the pre-trial conference so the judge, the lawyers, and the parties can talk openly and freely about settlement possibilities. See Wei Estate v Dales, para 20.

[39] All of the cases cited by the parties deal with disclosure of information from the pre-trial conference to the trial judge or a motion judge in the same proceeding:

• in Bell Canada, the Court of Appeal held that the disclosure of settlement negotiations from the pre-trial conference to the trial judge for costs submissions was improper, even on consent
• in Marshall v Watson Wyatt & Co., 57 OR (3d) 813, the Court of Appeal held the trial judge incorrectly barred the defendant from introducing evidence contrary to a position it took on discovery even though the defendant put the plaintiff on notice of its changed position in its pre-trial conference brief
• in Puri Consulting Limited v Kim Orr Barristers PC, 2015 ONSC 577, Justice Brown held that evidence of settlement negotiations is admissible to resolve an ambiguity in a settlement agreement
• in Tondera v Vukadinovic, 2015 ONSC 5843, Justice Mew held that communications about a settlement from a pre-trial conference are admissible to determine whether the parties made an agreement
• in Solanki v Reilly, 2021 ONSC 1326, Justice Tranquilli held that she could consider the redacted pre-trial conference brief to decide whether the defendant had notice of the plaintiff’s past care claims

[40] And Minifie reads “statement” too narrowly. A statement can be oral or in writing. Many of the cases above are about disclosure of a written statement. If I accept Minifie’s argument, that means that I can’t tell the trial judge what the lawyers told me at a pre-trial conference, but I can give the trial judge a copy of the parties’ briefs. This interpretation is illogical and would defeat the purpose of the rule.

[41] In capsule form, these cases hold that statements, including briefs, from a pre-trial conference can be communicated to another judge in the same proceeding where a concluded settlement agreement is in issue or to determine whether a party had notice of a triable issue. As a result, rule 50.09 isn’t relevant to this analysis. This motion isn’t about disclosure of the Lozon brief to another judge in that case. More broadly, there are exceptions to the open court principle, including for privileged communications.

[42] Minifie makes a second argument: the Diocese’s blanket denial of her allegations means that she must introduce similar fact evidence to prove her claim. To the extent that Minifie seeks to introduce evidence of the Diocese’s or Paquette’s discreditable conduct, she has to do so through other means. Again, settlement privilege would be undermined if parties had to fear that their admissions in one case could be used to argue they had a tendency to commit the same acts in another case.

[43] In conclusion, Minifie has failed to show a relevant exception to the settlement privilege. There’s no basis to pierce that privilege just because the privileged communication was found in the court file.

D. Issue #4: What’s the appropriate remedy?

[44] The Diocese requests an order that the pre-trial conference brief be removed from the court file. In making this argument, the Diocese submitted that it’s a practice in Ontario that the pre-trial judge return the briefs to the parties after the conference. That practice isn’t codified in the rules or practice directions. But I agree that, at least before the advent of virtual hearings, judges often returned or parties retrieved the briefs, likely to avoid inadvertent disclosure of privileged communications.

[45] On that basis, I direct that the court return the pre-trial conference brief in the Lozon matter to the Diocese or its lawyer. Further, I endorse an order that Minifie’s lawyer should delete any soft copies and destroy any hard copies of the brief in their possession.

[46] The brief was filed for this motion as an exhibit. The motion record has been uploaded to Case Center. The most efficient remedy is for Minifie to substitute a redacted copy of its motion record in the court file and on Case Center, so that the motion record remains available to the public but the brief itself is not disclosed.

IV. CONCLUSION

[47] The problem of inadvertent disclosure of privileged information may be made more acute by the use of online tools for filing court documents. No one has ever asked me to “return” a pre-trial conference brief to them. I’m not sure how I would do that when materials are filed online.

[48] That said, it may be prudent for parties to ask the court to direct that any briefs be deleted from the court’s filing systems after the pre-trial conference. Alternatively, the Civil Rules Committee may consider an amendment to the Rules of Civil Procedure that allows a party to file a redacted copy of the brief, but provide the court with an unredacted copy, like motions for removal as lawyer of record under rule 15.04(1.3).

Agarwal J
Date: 2025-03-12

[^1]: Under Rules of Civil Procedure, r 30.03(1), a party shall serve an affidavit of documents. The Diocese’s affidavit was blank: no deponent, no signature, no witness, and no signed certificate by the lawyer. There’s no such thing as a “draft” affidavit of documents, and there’s no reason why, especially when the court allows remote commissioning, affidavits of documents shouldn’t be sworn.

[^2]: Minifie filed the Diocese’s affidavit of documents and all of its productions. Under Rules of Civil Procedure, r 30.03(5), an affidavit of documents shall be filed only if it’s relevant to an issue on a motion. Minifie also filed the transcripts of both her and the Diocese’s examinations for discovery. Under r 39.04, a party may only use an adverse party’s examination for discovery. Minifie only relies on a few documents and a few questions. She should’ve only filed excerpts—the rest of the documents and transcripts are inadmissible because they’re irrelevant.

[^3]: This affidavit is inadmissible hearsay evidence. Though Rules of Civil Procedure, r 39.01(4), allows hearsay evidence on a motion, the affiant must specify the source of the information. This affidavit only states that the articling student received information from “the client”. In any event, Minifie accepts these facts for this motion. Also, in my view, it’s outside the boundaries of an articling student’s duties to be witnesses in their principal’s client’s lawsuits. See Kamrani-Ghadjar v Anaergia Inc., 2024 ONSC 4866, para 16; Monkhouse Law v Belyavsky, 2024 ONSC 4970, fn 18.