Court File and Parties

Court File No.: CV-21-667-0000
Date: 2025-04-23
Court: Superior Court of Justice – Ontario

Between:
Joel Pilotte, Plaintiff
and
Father Roy and Roman Catholic Diocese of Sault Ste. Marie, Defendants

Before: H.A. Rady
Counsel:

• A. Zaltz, for the Plaintiff
• V. De Sousa, for the Non-Party, La Corporation Archiepiscopale Catholique Romaine De St.-Boniface

Heard: 2025-04-11

Endorsement

Introduction

[1] The plaintiff alleges that he was the victim of sexual assault by the defendant Father Roy (Roy) at a time when Roy was a priest in the Roman Catholic Diocese of Sault Ste. Marie (Sault Ste. Marie).

[2] The plaintiff seeks an order pursuant to Rule 30.10 for the production of Roy’s personnel file when he was with the Non-Party Archdiocese of St.-Boniface (the Archdiocese).

[3] The plaintiff relies on two affidavits in support of his motion, the first from his lawyer Jeffrey Preszler and the second from Robert Zilliox, a Pontifical Licentiate in Canon Law retained by the plaintiff to provide an opinion “as to the positive duties conferred on local ordinaries (i.e., Bishops or Archbishops) by Canons 375, 376 and 379 of the Pro-Benedictine Code of Canon Law”.

[4] During the course of examinations for discovery, the plaintiff was provided with various documents including Roy’s curriculum vitae. It disclosed that between 1952 and 1959, he was incardinated at the Archdiocese. The plaintiff believes that the Archdiocese will have relevant records in its possession because of the provisions of Canons 375, 376 and 379. Mr. Zilliox has deposed that they provide for the archival retention of clergy personnel records, which are said to include complaints, misconduct allegations (sexual or otherwise) and their resolution, background checks, and training in the protection of minors, among other things.

[5] The plaintiff says he has been unable to obtain the file from Sault Ste. Marie through the usual discovery process. Sault Ste. Marie has delivered an Affidavit of Documents, and the Archdiocese’s personnel file for Roy is not listed in Schedule A as being or having been in its possession, power or control.

[6] Mr. Preszler deposes that documents in Sault Ste. Marie’s Schedule A disclose that it was aware of “at least one complaint of sexual misconduct made against Roy, prior to Roy’s assignment to [Sault St. Marie].”

The Parties’ Positions

[7] The plaintiff submits that the requested material is relevant. He alleges that there is a history of allegations that Roy sexually abused three other children over the course of several pastoral placements within the Archdiocese. The issue for trial will be if and when such a propensity was known or ought to have been known by Sault Ste. Marie prior to Roy’s assignment within its community.

[8] The plaintiff alleges at paragraphs 32(d) and (m) of the Statement of Claim that Sault Ste. Marie “failed to properly investigate Roy’s background, character and psychological state prior to offering him a position with the church”, and that it “failed to screen and/or monitor the character and sexual activity of employees … particularly, Roy”.

[9] Sault Ste. Marie delivered a Statement of Defence. At paragraph 6, it pleads that “at no time did it have any knowledge, actual or otherwise, or any suspicion of any alleged sexually inappropriate contact and/or of any propensity on the part of Roy as described in the Statement of Claim”.

[10] The non-party submits that the records are not relevant to any material issue in the action. It suggests that the requested disclosure does not bear on Sault Ste. Marie’s liability and would put the Archdiocese to “undue inconvenience, expense and exposure to liability.” The non-party suggests that the plaintiff is on a fishing expedition. It makes the point that it was not provided with transcripts of the discovery when the plaintiff had an opportunity to ask the defendant about what information it had about Roy prior to his assignment to its community. It does not know what was asked or what answers were given.

[11] It also suggests that in any event, the plaintiff already has information about a prior complaint about Roy while he was assigned in the Archdiocese.

The Law

[12] Rule 30.10 provides as follows:

(1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

[13] Rule 30.10 requires the Court to engage in a balancing process – to assist the moving party in proving its case while protecting the non-party from undue inconvenience, expense or exposure to liability. See Lowe v. Motolanez, para. 17; and Raponi v. John Doe #1, 2010 ONSC 3632, para. 16.

[14] The Court must be satisfied that there is a reasonable possibility that the requested information is logically probative of a material issue. Fishing expeditions are not permitted. See K.F. v. White, para. 63; Walker v. Doxtator et al., 2018 ONSC 2112, para. 12; and Lauren v. Beneteau, [2007] O.J. No. 2658 (S.C.J.), para. 24.

Analysis

[15] I have concluded that the requested documents are relevant to a material issue and should be produced. They bear on a central issue for trial, namely what, if anything, did Sault Ste. Marie know of Roy’s past. Was there information of concern in the Archdiocese’s file and if so, was it disclosed to Sault Ste. Marie? What steps did Sault Ste. Marie take to investigate Roy’s employment history? Was it obliged to do so? These are all issues to be determined at trial which makes the documents relevant. It would clearly be unfair to the plaintiff to proceed to trial without the opportunity to review the requested information.

[16] There is no evidence that the Archdiocese will be put to undue expense or inconvenience or that somehow the disclosure of Roy’s file might expose it to liability to this plaintiff.

[17] It would have been preferable for the plaintiff to have asked questions of Sault Ste. Marie during the examination for discovery about what it knew, if anything, about the Archdiocese’s file. It would have been helpful to have had the transcripts for review.

[18] Nevertheless, this omission should not preclude the plaintiff from having access to the requested information. To hold otherwise runs contrary to the spirit and direction in Rule 1.04 of the Rules of Civil Procedure that cases be determined on their merits in the least costly and most expeditious way.

[19] The motion is granted. I encourage the parties to agree on costs, failing which I will receive brief written submissions, not exceeding three pages, within 30 days of the release of these reasons.

Justice H.A. Rady
Released: April 23, 2025