Reasons for Decision

Court File No.: CV-20-636717
Superior Court of Justice – Ontario
Motion Heard: 16 December 2024
Before: Associate Justice Jolley

Parties:
Lisa Brown, Plaintiff (self-represented)
The Bank of Nova Scotia, Defendant (counsel: Bonnie Roberts Jones)

Date of Decision: 14 January 2025

A. Overview

[1] The plaintiff seeks an order requiring the defendant to produce the documents listed in Schedule B of its affidavit of documents and an order that she be granted leave to examine Loretta Marcoccia, the defendant’s Executive Vice President and Chief Global Operations Officer, and to cross-examine Meighan Ferris-Miles, the defendant’s senior legal counsel and the deponent of its affidavit of documents. Lastly, she challenges the defendant’s assertion that certain documents cannot be located.

[2] Without admitting the appropriateness of any further examinations, the defendant consented to the request for the examination of Ms. Marcoccia and for the cross-examination of Ms. Ferris-Miles.

B. Challenge to the Defendant’s Claim of Privilege

[3] The plaintiff argues that the defendant’s Schedule B lists several documents that relate to the investigation undertaken into the workplace issues she had raised. She argues that litigation privilege cannot attach to that investigation as litigation was not contemplated at the time. Solicitor-client privilege cannot attach as the work was not required to be done by a lawyer and was more in the nature of a human resources investigation.

[4] The defendant does not necessarily take issue with those submissions. What it does say is that it has produced all documents relating to the workplace investigation, including all investigation notes. The documents it has listed in its Schedule B do not relate to the investigation, but to advice it received from its lawyer after the investigation was over concerning the plaintiff’s employment.

[5] Specifically, it argues that once the investigation had concluded, it sought legal advice about its options concerning the plaintiff’s employment status, including offering a severance package and what that package should reasonably entail. It argues that the documents related to that post-investigation legal advice from its counsel are privileged.

[6] The plaintiff also argues that, if privilege is established, the common interest exception applies because the investigation was initiated by her, at the behest of the bank’s employee relations group, and she and the defendant each had a vested interest in dealing with these allegations. The defendant disagrees that there was any joint retainer and argues that the common interest exception does not apply.

(a) The Documents Are Privileged

[7] The defendant requested that I examine the documents over which it claims privilege and I have now done so, with the plaintiff’s consent.

[8] The plaintiff argues there was no demarcation between the role of the defendant’s lawyer, Rhonda Jansen, in the investigation, and her role and communications after the investigation that would protect the latter as privileged. She submitted that all the advice was a continuum of advice to deal with her workplace complaint, and the documents related to that complaint and investigation are not privileged.

[9] First, the evidence before me from the affidavit of Ms. Ferris-Miles is that Ms. Jansen was retained, first, to conduct an investigation into the plaintiff’s complaints. Once that investigation was completed, as set out in paragraph 23 of Ms. Ferris-Miles’ affidavit, Ms. Jansen was “then tasked with providing legal advice to BNS on whether Ms. Brown should be provided with the options of either staying at BNS or leaving, and taking a severance package. Ms. Jansen also provided advice on what the value of the severance package should be. The documents listed in Schedule B as outlined in the paragraph above [items 11-16, 18-22, 24-32] contain that legal advice. The advice is not related to the investigation and is solicitor-client privileged.” Ms. Ferris-Miles was not challenged on her statement.

[10] This position is also supported by my review of the privileged documents in question. Having reviewed the documents, I am satisfied that at least by the morning of 13 May 2019 Ms. Jansen commenced her role of giving legal advice to the defendant concerning the plaintiff’s employment situation, separate from her role in the earlier investigation.

[11] Second, Schedule B documents 18, 20, 21 and 22 either reference and discuss the legal advice the defendant had received from Ms. Jansen on 13 May 2019, or are part of a continuum discussing that legal advice on how to deal with the plaintiff’s employment once the investigation had concluded. The plaintiff argues that these documents are between employees who are not solicitors and no privilege can attach to them.

[12] I do not accept that argument. I find that solicitor-client privilege attaches to all these discussions that surrounded the legal advice given by the bank’s lawyer on employment options relating to the plaintiff. The privilege attaches not only to the advice given but also to all communications passing between the client and the solicitor relating to that advice (see 578115 Ontario Inc. o/a McKee’s Carpet Zone v. Sears Canada Inc., 2013 ONSC 4135, paras 27-30). Additionally, the privilege attaches to documents that, if produced, would tend to reveal the legal advice that was given. That is certainly the case for the challenged productions as they comment on or ask questions about the legal advice and recommendations they had received.

[13] Third, I find that the notes taken by Ms. Jansen of her various conversations with bank employees (items 12, 13, 28, 29, 33 and 34) after the investigation was completed are privileged. Having reviewed the notes, I am satisfied that they were created by counsel to assist her in advising the defendant how to deal with the plaintiff’s employment post-investigation and to permit discussion on the recommendations.

[14] I turn next to the plaintiff’s list of challenged document categories. The plaintiff produced a chart in her motion record entitled “Documents Not Included in Discovery”. She challenges the claims for privilege over the categories of documents set out at items 14-17 of that chart.

[15] In particular, the plaintiff seeks at item 14, “all documents relating to the defendant’s investigation into the plaintiff’s complaint to Employee Relations including notes from all interviews and all evidence collected”. I am satisfied on the evidence before me, including the affidavit of Ms. Ferris-Miles, that the defendant has provided all the documents it has relating to the investigation, including any notes it was able to find, other than the privileged documents listed in its Schedule B.

[16] The plaintiff seeks at item 15 “all communication internal to Scotiabank between anyone who played a role in the decision to offer the plaintiff a severance package following the defendant’s investigation into the plaintiff’s employee relations complaint.” The defendant has listed in its further further supplementary affidavit of documents at rows 11-16, 18-22 and 24-32 the documents over which it claims privilege relating to this issue, some of which I have dealt with above.

[17] Documents 11-16 are all dated 13 May 2019 and are to or from the defendant’s lawyer to various individuals at the bank. Ms. Ferris-Miles deposed that the listed documents relate to the request for legal advice from Ms. Jansen given on whether the plaintiff should be provided with the option to stay or leave with a severance package and, if offered a package, what the value of that package should be. My review of those productions confirms that to be correct. The documents seek legal advice on events that post-date the investigation and are privileged.

[18] The plaintiff seeks at item 16 “all communications internal to Scotiabank between anyone involved in the decision to provide the plaintiff with a letter stating that she needed to improve her performance.” These documents have been produced in full other than one which was redacted for solicitor-client privilege. The redacted document is marked privileged, is from Ms. Jansen, and contains the subject line, “Script for discussion with Lisa Brown”. Having reviewed the document, I am satisfied that it provides the defendant with legal advice on how to deal with the plaintiff’s employment situation and her response to the bank’s improvement letter and is privileged.

[19] The plaintiff seeks at item 17 “all communications internal to Scotiabank between anyone involved in the decision-making process and preparation of the plaintiff’s termination letter and dismissal.” The defendant has produced a number of documents relating to this decision and there is no evidence on this motion that further documents exist, other than items 18, 20, 21 and 22 of the bank’s Schedule B, which I have found to be privileged.

(b) There Is No Common Interest Privilege

[20] The evidence does not support the plaintiff’s argument that she and the defendant jointly retained the investigator to consider her employment situation, such that there was a common interest privilege over the work product. The plaintiff brought a concern to the attention of her employer, albeit at the request of HR, about her treatment in the workplace. The employer then retained counsel to conduct the investigation. Subsequent to the investigation, the defendant sought legal advice from its counsel about its options.

[21] Even if it were found that the plaintiff was “intimately involved in the conducting of the investigation”, to quote the language of the court in Howard v. City of London, 2015 ONSC 156, upheld on other grounds at 2015 ONSC 3698, that is not sufficient to establish a common interest privilege. There is no evidence that the plaintiff was consulted about or had input into the outcome of the investigation. She was interviewed as a witness, along with other bank employees, and the investigator produced a report to her client, the employer bank.

C. Documents Not Specifically Addressed

[22] The defendant understood that, on this motion, the plaintiff was challenging the Schedule B documents she had set out in her factum. The plaintiff argued that she was challenging all the Schedule B documents as set out in her notice of motion and those discussed in her factum were by way of example only.

[23] It was agreed that, in order to avoid any more motions in this file, the defendant would provide me with copies of all its Schedule B productions. If I could make a determination of the privilege issue on the basis of my review, I would. If I required further input, I would grant the defendant the opportunity to respond.

[24] I have reviewed all 34 productions in Schedule B. I find that all documents including and after document 8 are privileged. They were created for the purpose of giving, receiving or commenting on legal advice on the defendant’s options about the plaintiff’s employment situation.

[25] I am also satisfied that documents 1 to 5 are privileged as they stem from a request from the defendant to its lawyer for advice concerning issues raised by the plaintiff in April 2019 about the development plan presented to her.

[26] Even though documents 6 and 7 are between Ms. Jansen and another internal legal colleague, it seems that Ms. Jansen has authored these documents in her capacity as investigator. It is my preliminary view that these two documents are not privileged, as a result. Given the defendant did not have the opportunity to address these documents, should it wish to challenge this preliminary view, it may provide up to two pages of submissions to my assistant trial coordinator, Ms. Meditskos, copied to the plaintiff, within ten days of receipt of this decision, for my consideration. Otherwise, these two documents are to be produced to the plaintiff.

D. Documents That Cannot Be Located

[27] Ms. Ferris-Miles outlined in her affidavit the steps the defendant took to locate certain documents requested by the plaintiff and deposed that the defendant has been unable to locate some of them. For instance, it has searched for documents relating to item 16, the internal communications relating to the plaintiff’s performance, has produced some additional documents and affirmed that there are no others.

[28] It would not be useful to require the defendant to look again, in light of its efforts to date. It is aware of its continuing obligation to update its affidavit of documents in the event it discovers additional relevant documents.

[29] The plaintiff’s motion is hereby dismissed.

E. Costs

[30] The defendant seeks its partial indemnity costs in the all-inclusive amount of $9,939.07. Given the volume of work involved, the hours spent appear reasonable. They certainly are reasonable when compared with the plaintiff’s costs outline which totals $18,217.71. The defendant was successful in opposing the motion and the plaintiff shall pay its costs in the all-inclusive amount of $8,500.00.

[31] Although, with the consent of the defendant, I permitted the plaintiff to examine Ms. Marcoccia and cross-examine Ms. Ferris-Miles in November when the parties first appeared before me on this motion, the plaintiff advised that she has been unable to do so as she cannot afford the cost charged by the examiner’s office.

[32] I am of the view – in this one instance only – that these costs payable by the plaintiff to the defendant on this motion need not be paid until the conclusion of the action by trial or otherwise. I am concerned that a costs award payable now would bring an abrupt halt to this action. However, the plaintiff should be aware that I am exercising my discretion to make this one time concession and it will not be on offer on any future motions. Litigation is costly, not just for her, but for the defendant, who must respond to these motions. I encourage the parties to avoid further motions, work with the record they have and set the action down for trial.

Date: 14 January 2025

Associate Justice Jolley