CITATION: T.H. v. Kinark Children and Youth Services, 2026 ONSC 4001

COURT FILE NO.: CV-21-3118-0000

DATE: 2026 07 13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: T.H. and Z.F., Plaintiffs

AND:

Kinark Children and Youth Services (Syl Apps Youth Centre) and E.L., Defendants

BEFORE: Associate Justice J. Glick

COUNSEL: Ikenna Aniekwe, for the Plaintiffs

Cameron Malcolm and Beatrice Rutayisire for the Defendants

HEARD: May 26, 2026

ENDORSEMENT

OVERVIEW

1This is a motion by the Defendant Kinark Children and Youth Services (Syl Apps Youth Centre) (“Kinark”) for leave to file a third-party claim and to compel the Plaintiffs to answer refusals to questions asked at their examinations for discovery. The Plaintiffs have brought a cross-motion to compel the production of a workplace investigation report over which Kinark claims solicitor and client privilege.

2I have anonymized the names of the parties as the case deals with matters which are subject to the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1. The parties have not obtained an Order allowing access to youth records, which is a problem that they must immediately address. I have set out the law on this issue in a preliminary legal section below.

3Subject to the parties obtaining an Order under the YCJA from the Ontario Court of Justice, I have dealt with the issues on this motion as follows:

a. Kinark’s motion for leave to issue a third-party claim is denied;

b. Kinark’s motion to compel answers to questions refused on discovery is granted except for one refusal which is maintained;

c. The Plaintiffs’ motion for production of the workplace investigation report is granted.

BACKGROUND

Events Giving Rise to the Action

4The Plaintiff T.H. was a member of the Youth Justice Program at one of Kinark’s facilities between October 2019 and September 2020. The Plaintiff Z.F. is T.H.’s mother. The Defendant E.L. was a staff member at Kinark.

5The Plaintiffs allege that while in custody, T.H. was coerced by E.L. into an inappropriate sexual relationship. The Plaintiffs also allege that E.L. provided T.H. with illegal drugs. The Plaintiffs allege that these events affected T.H.’s rehabilitation and ultimately have affected his ability to reintegrate into, and become a productive member of, society.

6E.L. was charged with a number of criminal offences in relation to T.H.’s allegations. E.L. was charged with sexual assault, sexual exploitation and breach of trust. I am not able to determine the outcome of the charges from the record in front of me on this motion, but in this action E.L. denies any sexual relationship or sexual contact with T.H. She admits however that she delivered items to T.H. on two occasions. The items contained illegal drugs. E.L. admits that she knew the second item contained drugs when she provided it to T.H.

7E.L.’s admission is set out at paragraph 9 of her statement of defence and crossclaim. This is important because, as set out below, this is when the Plaintiffs argue that Kinark ought to have known that the drugs were provided to E.L. by T.H.’s then-girlfriend. Paragraph 9 of the defence and crossclaim states:

Sometime in the spring of 2020, [T.H] approached [E.L.] and asked her to bring him his personal iPod. At first [E.L.] refused. However she eventually acquiesced and met us with [T.H.’s] girlfriend who gave [E.L.] the iPod, (sic) [E.L.] then brought [T.H.’s] personal iPod to him at Syl Apps. Unknown to [E.L.] the iPod concealed illegal drugs for [T.H.]. [E.L.] delivered [T.H.’s] personal iPod to him a second time at Syl Apps, however on this second occasion she was aware that the iPod contained illegal drugs for [T.H.].

8As set out in the affidavit of Cynthia Weaver, Kinark’s Chief Operating Officer, in or around September or early October of 2020, Kinark’s staff became aware that E.L. had been arrested and charged. Kinark also learned that the CAS had been notified and was conducting its own investigation. As a result, Kinark’s senior management retained Helen C. Daniel to conduct an investigation. Ms. Daniel is a lawyer and had previously completed legal and human resource assignments for Kinark.

9Ms. Daniel’s retainer agreement was signed on October 22, 2020. The retainer was to conduct a process review audit respecting the reporting of allegations against E.L. during her employment at Kinark. Ms. Daniel was asked to make findings of fact and to prepare a confidential written report. The scope of Ms. Daniel’s retainer was subsequently expanded to include recommendations from Ms. Daniel on Kinark’s internal processes. The report was delivered on December 17, 2020. It is marked privileged and confidential.

Procedural History of the Action

10The Plaintiffs commenced the action on November 19, 2021. The Plaintiffs allege, among other things, the torts of sexual assault, breach of trust and negligence. In addition to the allegations set out above, the Plaintiffs plead that Kinark was informed by Z.F. that T.H. appeared to be getting high on illicit drugs while at Kinark but Kinark dismissed her concerns, and then accused her of being the source of the drugs. She says Kinark threatened to send T.H. to another facility far away where she “would never be able to see him again.” The Plaintiffs allege that “the totality of the Defendants’ negligence towards [T.H.] has set an unpredictable chain reaction in motion which, while it is unclear at the time of this claim what the end-point could be, has certainly created an adverse vicious-circle that does not bode well for their financial, emotional, social and psychological wellbeing.”

11Kinark defended the action on or about January 5, 2022 and cross-claimed against E.L. It amended its defence and crossclaim on November 14, 2024. Kinark denies all of the allegations against it.

12E.L. defended the action and crossclaimed against Kinark on February 4, 2022. As above, E.L. denies any sexual relationship or sexual contact with T.H. but admits to providing T.H. with illicit drugs which were provided to her by T.H.’s then-girlfriend.

13Discoveries in this matter took place in 2024. T.H. provided his unsworn affidavit of documents to Kinark on March 14, 2024. Z.F.’s discovery took place on March 28, 2024. E.L.’s discovery took place on May 16, 2024. Ms. Weaver’s discovery as a representative of Kinark also took place on May 16, 2024. T.H.’s discovery took place on May 17, 2024.

14On September 26, 2024, Kinark received the unredacted police file relating to E.L.’s criminal charges. I note that T.H.’s name is initialized in those records.

15On October 14, 2024, Plaintiffs’ counsel wrote to the other parties to advise he had received instructions to bring a summary judgment motion.

16On January 24, 2025, Kinark wrote to the other parties requesting their consent to allow Kinark to issue a third-party claim against E.N., T.H.’s former girlfriend. Kinark says that it was only after its counsel reviewed T.H.’s draft affidavit of documents that it realized that T.H.’s former girlfriend E.N. may have had involvement in bringing illegal drugs into Kinark for T.H.’s use. Kinark says this was confirmed in T.H.’s discovery on May 17, 2024. Further details were contained in the police records. It was at that time, in late September 2024, that Kinark made the decision to pursue a third-party claim against E.N. The Plaintiffs refused to provide their consent and again noted their “preparedness to proceed with this matter by way of summary judgment”.

17The Plaintiffs in their cross-motion also originally sought leave to amend their Statement of Claim. That issue was resolved between the parties before the hearing of the motion. I was not asked to make an Order with respect to the amendment, which can be made without an order of the court if all parties consent. The proposed amendments increase the amount the Plaintiffs are seeking in damages and advance a new cause of action in breach of fiduciary duty. The material facts in the amended claim are the same as in the original claim.

LAW AND ANALYSIS

18There are three issues raised by the parties on this motion – whether leave should be granted to issue a third-party claim, whether T.H. should be required to answer the questions refused on examination for discovery and whether the workplace investigation report should be produced. I deal with each separately in the sections below after dealing with the preliminary issue of whether a YCJA Order is necessary in this case.

PRELIMINARY ISSUE: The Parties Must Obtain a Section 123 YCJA Order

19I am concerned that the Parties in this action appear to be making use of T.H.’s youth records without an order permitting them to do so. This must be addressed immediately and before any further records are disclosed in this proceeding that are, or may be, youth records.

20Section 118(1) of the Youth Criminal Justice Act (S.C. 2002, c. 1). states that “except as authorized or required by [the YCJA], no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under [the YCJA]”.

21The word “record” is defined in the YCJA as including any thing containing information, regardless of its physical form or characteristics, … and any copy of any of those things, that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act.

22Sections 119 and 123 of the YCJA deal with access to youth records. Section 119 deals with access to records during the access period. Section 123 deals with access to records after the access period. Both sections contain provisions allowing a party to move before the court for an order allowing the use of youth records – section 119(1)(s) and section 123(1)(a). A party who has youth records, including the youth, cannot further disclose those records absent an order under one of these two sections.

23The only court with jurisdiction to make an order under either section is the youth justice court. This was confirmed by the Court of Appeal in S.L. v. N.B., 2005 CanLII 11391 (ON CA), [2005] O.J. No. 1411 (C.A.) at pars. 54-55. The Court of Appeal in that case decided that ss. 117-129 of the YCJA and more particularly ss. 118-119 provide a complete system of tight control over youth records and leave the issue of access to them exclusively in the hands of the youth justice court, which in Ontario is the Ontario Court of Justice.

24A youth justice court may deny an order allowing access to youth records. It may also grant such an order. In the latter case, it may allow access generally or may allow access subject to a further order of the Superior Court, as contemplated at paragraph 52 of S.L. v. N.B. Either way, it is the youth justice court which must make that decision, and to which the parties must make a motion before moving forward with this case.

25Even as the parties do not have an Order allowing the use of youth records, I have considered the refusals motion. Where I believe that an answer that I order be made may result in the disclosure of a youth record, I have ordered that the answer only be made if and when an order is obtained allowing access to T.H.’s youth record.

ISSUE 1: Third-Party Claim

Law

26Third-party claims are governed by Rule 29.01, which states:

29.01 A defendant may commence a third-party claim against any person who is not a party to the action and who,

(a) is or may be liable to the defendant for all or part of the plaintiff’s claim;

(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,

(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or

(ii) a related transaction or occurrence or series of transactions or occurrences; or

(c) should be bound by the determination of an issue arising between the plaintiff and the defendant. R.R.O. 1990, Reg. 194, r. 29.01.

27A third-party claim is to be issued within 10 days after the delivery of a statement of defence. Where that has not happened, pursuant to rule 29.01(1.2) a third-party claim may be issued at any time with the plaintiff’s consent or with leave, which the court shall grant unless the plaintiff would be prejudiced thereby.

28The prejudice under rule 29.01(1.2) is different than prejudice under rule 26.01 in the sense that it does not need to be non-compensable prejudice. This may be because a defendant denied leave to bring a third-party claim can still commence a stand-alone action as against the proposed third-party defendants.

29Justice Somji, in Townley v. Saunders, 2024 ONSC 2981, set out at para. 47 the factors a court may consider in finding prejudice under this rule. These had been set out previously in Farrell v. Costco Wholesale, 2015 ONSC 7783. Those factors include:

a. The length of time between notification of the claim to when the Defendant opts to issue a third-party claim;

b. the time between service of the claim and the Defendant raising the Third-party claim;

c. the availability of the underlying facts to the Defendant from the time the incident occurred;

d. the absence of any explanation for the failure to comply with the statutory deadline;

e. the inexplicable delay in applying for leave thereafter;

f. the discernable absence of merit to the third-party claim;

g. the unlikelihood that a separate action against the third-party would result in an inconsistent verdict;

h. the fact that examinations for discovery have happened and need to happen again;

i. the delay in scheduling trial; and

j. the ongoing adverse effects of the injury on the Plaintiff.

30The Court of Appeal, in Maillet v. Deren, 2025 ONCA 159, recently considered two of the above factors – delay in bringing the motion and the merit of the proposed third-party claim -and their impact in the prejudice analysis. With respect to delay, at para. 9 of that decision, the Court of Appeal states that the “presence or absence of an explanation for delay is always a factor to be considered… The failure to offer an explanation weighs against the party seeking the extension of time.” At para. 10, the Court of Appeal states “the issue of delay by itself, is not determinative…”. At para. 11, the Court of Appeal states that “delay is still a matter that factors into the overall consideration of prejudice.

31With respect to the merit of the proposed claim, at paras. 12-18 the Court of Appeal states that a Rule 29 motion ought not to “be treated as some form of surrogate motion for summary judgment… but that does not change the accepted principle that when a party is seeking an indulgence, it is a relevant factor whether the step for which the indulgence is sought, appears to have some merit.” The Court of Appeal found that the appropriate test for determining merit is not the test on a Rule 21 motion, nor the test on summary judgment, but rather the same test as considering whether to grant an extension of time. The question is whether the claim “has any real chance of success”.

Analysis

Parties’ Positions

32The Parties focused their arguments on the issue of delay and merit. Kinark argues that there is an explanation for the delay in pursuing a third-party claim against E.N. Kinark says that it pursued the third-party claim within a year of the commencement of the discovery process. It was through that process and after receipt of the police file that it says that it “fully appreciated” E.N.’s involvement in the claim. Kinark also argues that the proposed third-party claim has merit, satisfying the test in Maillet. To the extent that there may be a limitations issue, Kinark relies on the decision of the Court of Appeal in Collins v. Cortez, 2014 ONCA 665 to argue that expiry of a limitations period is a defence, but ought not to be a bar to the claim. Kinark also argues, relying on the Divisional Court’s decision in Philippine v. Portugal, 2010 ONSC 956, that the law is clear that the parties’ rights are determined as of the date of service of the motion.

33The Plaintiffs in opposing the Defendant’s request for leave argue that the limitations period has expired, that they will suffer prejudice if leave is granted and that Kinark is attempting to “double-dip.” They argue, relying on the Supreme Court’s decision in Grant Thornton LLP v. New Brunswick, 2021 SCC 31, that the limitations period began to run once Kinark received E.L’s defence. Specifically, they say that paragraph 9 of that defence, which I have excerpted above, ought to have alerted Kinark to any potential claim. They argue that Kinark’s explanation that it only had enough information to proceed after receiving the police records is without merit and that there is no credible explanation for the delay.

34The Plaintiffs argue that they will suffer prejudice if leave is granted because the claim will lengthen the case. They argue that T.H. is currently suffering from a series of challenges including addiction, suicidal ideation and mental illness and state that further delay could affect T.H.’s ability to participate in the proceeding as his health continues to decline and as he deals with the issues affecting him. The Plaintiffs in support of this statement rely on a medical record that shows that T.H. was recently an in-patient in a withdrawal management program at St. Joseph’s Healthcare in Hamilton¹. The Plaintiffs also state that the court should consider the stage of the proceeding and argue that the motion is a delay tactic to prevent them from proceeding to summary judgment.

35The third argument the Plaintiffs make, which was not in their factum but raised in oral argument, is that Kinark is attempting to “double-dip” by arguing that the Plaintiff is the author of his own misfortune and by seeking contribution and indemnity from E.N. The Plaintiffs, in support of this proposition, rely on the Court of Appeal’s decision in Hengeveld v. Personal Insurance Co., 2019 ONCA 497.

36I note that E.N. was served with the motion record even though this is not required by the Rules. E.N. did not appear on the motion but did file an affidavit. E.N. was served with the material on February 15, 2026. She says that Kinark ought to have known about her involvement upon receipt of E.L.’s defence. E.N. notes the events at issue occurred in 2019 when she was 17. She states that she is now a single mother of two children without employment, whose only source of income is child benefit payments and Ontario Works. She says she feels it would be unfair “to be dragged into this many years after it had happened, and at a time when my memory and any evidence I may have to defend myself would have either disappeared or been compromised.”

Findings

37I do not accept the Plaintiffs’ arguments that Kinark is barred from commencing a third-party claim against E.N. as a function of the principle articulated by the Court of Appeal in Hengeveld. The Court of Appeal in Hengeveld examined the interaction of the contribution and indemnity provisions of the Negligence Act (ss. 1,2, and 5) and the contributory negligence provision of the Negligence Act (s. 3). The Court of Appeal did not find that a third-party claim was never possible when a defendant has asserted some fault on the part of the Plaintiff, but instead found that “whether a claim by a defendant seeking contribution and indemnity from a third-party for alleged negligence that caused or contributed to the plaintiff’s damages discloses a reasonable cause of action is a function of whether that negligence is attributable to the plaintiff. If it is attributable to the plaintiff, the defendant has no cause of action against the third-party.”

38Justice Schabas recently considered the same issue in the case of Cowal Chalmers Inc. v. The City of Kitchener, 2026 ONSC 1486. The issue, as set out at paragraph 11 of that decision, is whether the proposed third-party is acting as an agent for the plaintiff, such that the agent’s actions are taken to be the actions of the plaintiff and any contributory negligence of the one is the same as the contributory negligence of the other. Where though the party was not the agent, then the claim can proceed as there is no double-dipping. In this case there is no assertion that E.N. was acting as an agent of T.H. such that T.H. would be completely responsible for her actions. As such, the double-dipping principle articulated in Hengeveld does not apply to bar a claim against E.N.

39The Court of Appeal in Hengeveld cited its decision in Taylor v. Canada (Minister of Health), 2009 ONCA 487. In that case a third-party claim was denied because the Plaintiff, in an effort to preclude the defendant from bringing a third-party claim, amended the claim to plead that her claim was limited to the defendant’s proportionate share of fault. In that case, the Court of Appeal upheld the motion judge’s decision to strike the third-party claim stating at paragraph 20, that “contribution rights arise only where a defendant is required to pay more than its proportionate share of a plaintiff’s damages”. In this case however, the Plaintiffs have not limited their claims to only a portion of their damages but instead seek all of their damages. The principle articulated by the Court of Appeal in Taylor similarly does not bar a third-party claim as against E.N.

40I reach a different conclusion with respect to the expiry of the limitations period. As set out by Justice Agarwal at paragraph 25 of Ranganathan v. Wasim, 2024 ONSC 7211, aff’d 2025 ONCA 850, “if a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding. See Limitations Act, s 21(1); Morrison v. Barzo, 2018 ONCA 979, at para 27.” As set out by Justice Agarwal at paragraph 26 of Ranganathan “under section 18 [of the Limitations Act, 2002], the presumptive limitation period for contribution and indemnity claims starts to run when the defendant is served. That presumptive limitation period start date, however, can be rebutted by the discoverability principles prescribed in section 5 of the Limitations Act, 2002. See Mega International Commercial Bank (Canada) v Yung, 2018 ONCA 429, at paras 67, 74.” AJ Jolly came to a similar conclusion in Marjadsingh v. Toronto Transit Commission v. Kahlon, 2018 ONSC 1439 that the limitations period in subsection 18(1) of the Limitations Act, 2002 is rebuttable.

41Justice Somji, in Townley, at paragraphs 28 and 29 considered the issue of the court’s discretion to add a party after the expiry of a limitations period:

28The court has discretion to add parties after the expiration of a limitation period. In exercising its discretion, the court must examine both the length of time expired under the limitation period and the principles of discoverability. As explained in Higgins v Barrie (City), 2011 ONSC 2233 at para 17:

In considering whether or not to use its discretion, the court will look to the limitation period and the principles of discoverability, because the passing of a limitation period gives rise to a presumption of prejudice. The prejudice arises from three purposes of limitation periods:

(a) A potential defendant has the right to expect that after the expiry of a limitation period, his or her obligations are put to rest;

(b) A potential defendant should no longer be concerned about the preservation of evidence relevant to a claim after the expiry of the limitation period;

(c) Finally, plaintiffs are expected to act diligently and not “sleep on their rights;” statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion:.”

29To add a party to a third-party claim after the expiry of a presumptive limitation period, the moving party “must give a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence”: Yaacov Hen v Bandura, 2015 ONSC 1511 at para 29; Higgins at para 19. More specifically, the court must examine the evidentiary record to determine whether Security National ought to have known the identity of the Proposed Defendants and whether they took any steps to determine that identity: Pepper v Zeller’ Inc. 2006 CanLII 42355 (ON CA), [2006] O.J. 5042 (CA) at paras 19-20; Higgins v Barrie at para 34.

42While Justice Somji considered the question pursuant to Rule 5.04(2) and not Rule 29.02(1.2), I find that the same principles apply on a motion under Rule 29.02(1.2) under the consideration of the merits of the claim as set out by the Court of Appeal in Maillet. As set out in Maillet and as set out by the Court of Appeal in Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, a rule 29 motion is not a summary judgment motion, but the court may assess whether the plaintiff acted with reasonable diligence and make a finding as to whether the motion should be granted or denied (see Mancinelli at paras. 22-25).

43Pursuant to section 18 of the Act, the limitations period to issue a third-party claim against E.N. began to run on the date Kinark was served with the claim. Having regard to the record, and for the purpose of this motion only, I accept that the claim against E.N. was only discoverable on the date that Kinark received E.L.’s statement of defence. On that date Kinark knew or ought to have known that T.H.’s girlfriend provided E.L. with the drugs which she then provided to T.H.

44Kinark has stated that it did not know the identity of the girlfriend until discoveries, and that it did not know the full extent of E.N.’s involvement until after receiving the police records in September 2024. Mr. Dakin, at paragraph 28 of his affidavit sworn on March 31, 2025 states that the “decision to bring the proposed Third-party Claim was made only at this time as I wanted to ensure that I had a full understanding of the involvement of any other potential third parties, which, in my view, was only possible after reviewing the complete police file.” Even if I accepted Kinark’s evidence in this regard, Kinark has not set out what if any steps it took in the two years from the date it received the statement of defence to the date it received the unsworn affidavit of documents to try to determine E.N.’s identity. The limitations period does not run from the date a party has a full understanding or is sure that there are no others that ought to be added, but rather when they, or a reasonable person with the abilities and in the circumstances of the party, first ought to have known of the claim. As above, I find that at the latest that date was February 4, 2022, the day of E.L.’s defence.

45In the alternative, if I am wrong that the third-party claim is barred by operation of the relevant limitations period, I would still deny leave on the basis that the Plaintiffs will suffer prejudice if the third-party claim is issued. Even if there was a reasonable explanation for the delay, such an explanation in and of itself does not address whether the Plaintiffs will be prejudiced by granting leave. As above, for the purposes of Rule 29, prejudice does not need to be noncompensable. In this case I agree with the Plaintiffs that adding E.N. as a third-party will cause further delay. This includes potential amendments to pleadings and additional discovery. I also note that this delay will occur in an action that was commenced in 2021, and which relates to issues which occurred in 2019 and 2020 when both the Plaintiff and E.N. were minors. I also accept that the delay will occur in a circumstance where there is no doubt that T.H. was provided illegal drugs while at Kinark and where he continues to suffer addiction issues. Having regard to all of these factors I find that granting leave to Kinark to issue a third-party claim at this stage would result in prejudice to the Plaintiffs.

46For all of these reasons, Kinark’s motion for leave to issue a third-party claim as against E.N. is denied.

ISSUE 2: Refusals

Law

47Rule 31.06 of the Rules requires a person examined for discovery to answer, to the best of their knowledge, information, and belief, any proper question relevant to any matter in issue in the action. As set out by AJ Barnes at paragraph 12 in Harding v. Fairwater Capital, 2026 ONSC 3771, “relevance regarding whether a discovery question and/or an undertaking request is proper and relevant is to be determined by referral to the pleadings, which set out the issues in dispute.” In determining whether a person must answer a question, the court must also consider the factors set out at Rule 29.2.03(1).

Analysis

48Though there were more undertakings and refusals outstanding when the motion was originally brought, as of the date of argument there were only a subset of refusals at issue, all arising out of T.H.’s examination for discovery. I deal with each refusal separately below using the numbering in Kinark’s compendium.

Tab 4 – To Advise What His Sister is Going to Study at University (Q.43)

49T.H. was asked whether his sister was in university. T.H. answered that she was going to university. He was then asked what she was going to study. T.H.’s counsel refused the question.

50Kinark says the question was relevant to the claim and ought to be answered. Relying on paragraphs 64-66 of A. (D.A.) v. B. (D.K.), [1995] O.J. No. 3901, they argue that a sibling’s educational achievement can be used to assess the likely achievement of a party but for the alleged injury or tort that the party says affected them. While the court in A. (D.A.) v. B. (D.K.) did not exclusively rely on the comparison to the plaintiff’s siblings in that case, it was one of many facts considered. Kinark also points out that T.H. says he intends to go to university in the future in his discovery transcript.

51The Plaintiffs argue that this case can be distinguished from A. (D.A.) v. B. (D.K.). In that case, the plaintiff argued that but for the injury she had suffered she would have fulfilled her plan to complete high school and university. The Plaintiffs argue that there is no such plea in this case and therefore not at issue. They also raise a concern with using a sibling’s educational achievement to determine the capacity of the plaintiff.

52While the court in A. (D.A.) v. B. (D.K.) may have considered a sibling’s educational achievement as one of many factors in assessing a plaintiff’s damages, the court in that case was not dealing with a refusal or assessing the relevance in the context of a refusal motion. As such, the case is of limited assistance. I find that T.H.’s sister’s achievement is not determinative of his achievement, and is not sufficiently relevant or proportional such that this question needs to be answered.

53I therefore find that this refusal ought to be maintained.

Tab 5: To Advise What Charges T.H. Faced in May of 2019 and Time at Another Youth Centre (Q92, Q98,)

54T.H. was asked about the charges that led to his admission to Kinark. The question was refused, although he answered that the charges did not relate to narcotics. He explained that upon his arrest in 2019 he went to a different centre before Kinark before being transferred to Kinark. He was asked how long he was at that centre in 2019 and that question was refused.

55Kinark argues that T.H.’s previous criminal history is relevant to future claims, and periods of previous incarceration are relevant to future income. They say that the questions should be answered on that basis.

56The Plaintiffs argue that the questions are not relevant. They say, relying on B.C. v. Zastowny 2008 SCC 4 that a person is not entitled to compensation for periods of unemployment due to incarceration except in specific exceptional circumstances which aren’t being claimed here such as wrongful conviction. As such, they say why T.H. was incarcerated is not relevant.

57I find that T.H.’s engagement with the criminal justice system and his time in custody is relevant to the question of damages. Kinark is entitled to explore on discovery what, if any, impact those issues had on T.H.’s economic loss and social loss (see Barker v. Barker, 2021 ONSC 158, rvsd in part, 2022 ONCA 567 at paras 209-213). They are also issues which are relevant to the question of what harm may have resulted from the events giving rise to this proceeding. The Plaintiffs assert in their claim that “[T.H.’s] overall progress in mental, emotional, social, and psychological rehabilitation have been directly hampered” as a result of the Defendants’ conduct. They also allege his “ability to properly reintegrate into, and become a productive member of, the society has been derailed, which will inevitably put a dire strain on the Family’s resources and finances to continue to provide for him, whereby also expanding his chances of relapse or re-offending.” Finally, they allege that the Defendants’ negligence has “set an unpredictable chain reaction in motion… that does not bode well for their financial, emotional, social and psychological wellbeing.” Even if loss of income for periods of incarceration is not being claimed, T.H.’s progression through the criminal justice system both before and following the events at issue in the claim is relevant.

58I therefore find that these two questions ought to be answered, subject to the parties obtaining a YCJA Order as discussed above.

Tab 6 – To Advise What T.H. Discussed with J at Another Facility (Q104)

59T.H. spoke to his transfer to a third centre. He was asked whether he received counselling there and said he did, within two months. He disclosed the counsellor’s name and stated that he spoke to the counsellor on four occasions. He was asked what he spoke about with the counsellor, and that last question was refused.

60Kinark argues that what T.H. told a counsellor is relevant as T.H. is asserting a claim for damages for psychological injury. Kinark relies on the decision of Kulpinski v. Toronto Transit Commission, [2000] O.J. No. 169. That case stands for the proposition that defendants in personal injury cases have an obligation to disclose post-accident medical records. Kinark also relies on Phillips v. Watson, 2007 ABCA 144, which speaks to the need for a judge to assess the relevance of psychiatric records before ordering their production.

61The Plaintiffs argue that this question and those like it are “an unwarranted intrusion into the privacy of the Plaintiff. According to the Plaintiffs it is unwarranted “because it is not, and the Defendants have not shown how it is, relevant to anything that is one of the recognized goals of discovery… it relates to nothing specifically that deals with the Plaintiff’s claim of psychological injuries or treatment, in that there is no background question or answer from the Plaintiff putting these records in issue.”

62I find that T.H. has asserted that he suffered psychological harm as a result of the events at issue in the claim. What he said about that harm, and what counselling he received post-incident, is relevant to a determination of his damages.

63I therefore require the Plaintiff to answer this question.

Tab 7 – Request for Written Authorization to Obtain Files From Two Centres (Q104)

64Kinark asked for an undertaking that T.H. provide written authorizations to obtain his files from two youth centres. The Plaintiffs took the question under-advisement but ultimately refused to provide those authorizations. Kinark’s interest in these files relates to any counselling T.H. may have received at either facility. The arguments the parties advanced were the same as those advanced above in respect of Tab 6.

65I find that the records from the two centres are potentially relevant for the reasons set out above. That being said, those records engage the YCJA. T.H. is ordered to provide authorizations to Kinark to obtain the records, subject to Kinark first obtaining a YCJA order allowing the use of such records in the within proceeding.

Tab 8 – To Advise if T.H. Received Counselling at a Youth Group Home and to Provide an Authorization to Obtain the Complete File. (Q112, Q113)

66At some point after the incident and while still a minor, T.H. went to a youth group home. T.H. was asked if he received counselling at that facility. T.H. refused to answer the question. T.H. was asked for an authorization to allow Kinark to obtain the file. That was also refused. The Parties make the same arguments about these questions as they did about counselling and records at the centres.

67T.H. says he was at the facility for approximately three months shortly after the events at issue in this claim. I find that the records of any counselling at that facility are relevant to the claim. T.H. is ordered to provide authorizations to Kinark to obtain the records, subject to first obtaining a YCJA order allowing the use of such records in the within proceeding.

Tab 9 – To Advise of the Nature of Charges Faced in January 2022 and Where he Was Incarcerated in 2022 (Q116, Q118)

68T.H. was asked about charges he faced in January of 2022. That line of questioning was refused. The Parties’ arguments with respect to this question are the same as those in relation to the questions at Tab 5. As above, I find that T.H.’s engagement with the criminal justice system is relevant. I therefore order that the Plaintiff answer this question. Given the location of T.H.’s incarceration, I believe that the YCJA may apply to these charges. As a result, Kinark must obtain an Order under the YCJA before receiving the answer to this question.

69T.H. was asked where he was incarcerated and how long he was incarcerated. The transcript shows that T.H. did answer both questions after some argument as between counsel. The institution was a youth facility, which is why the YCJA applies.

Tab 10 – To Advise Whether T.H. Sought Counselling While Incarcerated in 2022 (Q121)

70T.H. was asked whether he received counselling while incarcerated in 2022. T.H. refused to answer. I order that T.H. is to answer the question for the reasons set out above.

Tab 11 – To Provide a Copy of the File from the 2022 Institution (Q121)

71Kinark asked for T.H.’s file from the institution in which T.H. was incarcerated in 2022. T.H. refused the undertaking. The same reasoning applies here as above. T.H. is ordered to provide authorizations to Kinark to obtain the records, subject to Kinark first obtaining a YCJA order allowing the use of such records in the within proceeding.

Tab 12 – To Advise with Respect to Criminal Charges in Sudbury in 2023 (Q122, Q123, Q126, Q127, Q128)

72T.H. was asked if he was arrested in Sudbury in 2023. He was asked whether he was charged in 2023 with drug trafficking and firearms offences. T.H. did not answer either question. T.H. did state that he was incarcerated at Sudbury District Jail for a period of approximately three months. He was then asked whether he spoke to counsellors at the jail, which question was refused. T.H. also refused to answer whether he spoke to anyone at Sudbury about what happened to him at Kinark, which question he refused. T.H. was asked whether the charges he faced in Sudbury were dealt with by trial or plea. That question was also refused.

73For the reasons set out above, T.H. is ordered to answer the questions about what charges he was facing and what became of those charges. He is also ordered to answer whether he received counselling at Sudbury Jail.

74I also order T.H. to answer the question as to whether he spoke to anyone at Sudbury about what happened to him. I agree with Kinark that the question is proper pursuant to Rule 31.06(2). The Plaintiffs take the position that what T.H. said about the incident after the fact is irrelevant as it is not in dispute that he received drugs. I disagree. First, the issue of whether there was a sexual assault remains in dispute. Second, what T.H. may have said about the incident goes to his damages claim. For that reason, the evidence may be relevant and the question must be answered.

Tab 13 –T.H.’s Time at Hamilton Wentworth (Q132, Q133, Q134, Q135)

75T.H. was asked if he was incarcerated in 2024. T.H. stated he was incarcerated in January and February 2024 at Hamilton-Wentworth. He was then asked if he spoke to anyone about what had happened at Kinark. That question was refused. He was asked if he spoke to any counsellors at Hamilton-Wentworth and that question was refused. He was then asked if he was facing any outstanding criminal charges. That question was refused, as was the following question about whether T.H. was facing an upcoming criminal trial.

76For the reasons set out above, T.H. is ordered to answer all of these questions.

Tabs 14 and 15 – To Provide a Copy of the File From Humber and T.H.’s Ontario School Record (Q192)

77T.H. was asked to provide his academic file from Humber where he briefly took courses. He was also asked to provide his Ontario School Record. The questions were both refused. I find that the documents should be provided. They are both relevant to T.H.’s damages claim, which has been discussed above.

Tab 16 – To Advise if T.H. Asked Other Residents at Kinark to “Cheek” Their Medication (Q378)

78T.H. was asked whether he, while at Kinark, was asking other residents there to cheek their medication and give it to him. T.H. refused the question asking for the relevance. Counsel for Kinark stated that the records of T.H.’s time at Kinark suggested this was happening. They argue on the motion that the answer is relevant to the factual matrix of the claim. I agree. T.H. is directed to answer this question.

Tab 17 – The Name of the Friend Who Gave T.H. Drugs (Q405)

79T.H. was asked for the name of the friend who gave drugs to E.L. to give to him. T.H. refused the question. Kinark says the question is again relevant to the factual matrix. The Plaintiffs argue that it is irrelevant because there is no dispute as to what occurred. Again, I disagree with the Plaintiffs. The Defendants have not admitted that events occurred exactly as stated by T.H. even as E.L. has admitted providing him with drugs. Kinark is entitled to the name of the friend and T.H. is directed to answer the question.

Conclusion on Refusals Motion

80As set out above, I have found that T.H. is to answer all of the refusals addressed on the motion except for the question relating to his sister’s studies. Some of those answers can however only be given after the issue of the YCJA Order is addressed. As such, where answering the question would not offend the YCJA, T.H. is ordered to answer the question within thirty days of this decision. Where answering the question would, absent an Order under the YCJA, violate the YCJA, T.H. is not to answer until Kinark has obtained an Order from that court. Answers which engage the YCJA are due within thirty days of the date upon which T.H. is provided with a YCJA Order if one is obtained.

ISSUE 3: Workplace Investigation Report

Law

81Litigation privilege has not been asserted over the Report. The only privilege claimed is solicitor-client privilege. As AJ Kamal recently noted in Will Murray & Associates v. Nader Fakih, 2026 ONSC 657, “it is undisputed that solicitor-client privilege is a fundamental tenet of our legal system.” At paragraphs 25-30 of that decision, AJ Kamal tracks the evolution of the principle from the Supreme Court’s adoption of the Wigmore formulation in 1927 and from its evidentiary foundation into a principle integral to the administration of justice in Canada.

82As AJ La Horey noted at paragraph 21 of Milsom v. Toronto Community Housing Corporation, 2021 ONSC 7078, relying on the Supreme Court’s decision of Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 at para 15, solicitor-client privilege applies to (i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties.

83That being said, as recognized by Justice Shin Doi at paragraph 24 of Durham Regional Police v. Ontario Civilian Police, 2024 ONSC 2214, relying on Alberta v. Suncor Energy Inc., 2017 ABCA 221 and Howard v. London (City), 2015 ONSC 156), a workplace investigation report is not automatically privileged by virtue of the fact that a lawyer prepared the report.

84As set out by the Manitoba Court of Appeal at paragraph 18 of Gower v. Tolko Manitoba Inc., 2001 MBCA 11, in a case where there is a question about whether a document or communication is covered by solicitor client privilege, the onus rests on the party asserting privilege to establish:

a. That the document was for the giving or obtaining of legal advice;

b. That there was a lawyer and a client; and

c. That there was the existence of a solicitor-client relationship.

85The Manitoba Court of Appeal went on to speak to the first factor:

With respect to the first factor, the communication must be connected to obtaining legal advice, but legal advice is not confined to merely telling the client the state of the law. It includes advice as to what should be done in the relevant legal context. It must, as a necessity, include ascertaining or investigating the facts upon which the advice will be rendered. Courts have consistently recognized that investigation may be an important part of a lawyer’s legal services to a client so long as they are connected to the provision of those legal services.

Analysis

86The Plaintiffs, relying on the Court of King’s Bench of Alberta in Prosser v. Industrial Alliance Insurance, 2024 ABKB 87, argue that the Report is not privileged simply because its author is a lawyer. They state in their factum “the only reason why we are even having this discussion is because Ms. Daniel just happens to be a lawyer. If she was for instance, a retired Police Officer and all she did was… [conduct an investigation of its employees and internal practices] there is no way that the product of that task would be considered privileged.” The Plaintiff also disputes that Ms. Daniel was acting as a lawyer and takes the position that there was no solicitor-client relationship.

87As set out above, the evidence of Ms. Weaver is that Kinark retained Ms. Daniel to conduct an investigation of its employees and internal practices. Kinark states that it selected Ms. Daniel as she had previously completed legal and human resource assignments for Kinark. Ms. Daniel’s initial retainer letter says she was retained to “conduct a process review audit respecting the reporting of allegations about former employee [E.L.].” She was asked to make findings of fact respecting the inquiry. Though the court was not provided with the email, Kinark states that the mandate was expanded on December 1, 2020 to also make recommendations. The Report, which was provided to me for my review, and which is marked privileged and confidential, notes that expanded mandate and includes recommendations. The Report was completed after E.L. had been terminated.

88The motion turns on the questions of whether the Report was legal advice or for the purpose of legal advice and whether there was a solicitor-client relationship. Though the Plaintiff also argues that there was no lawyer here, that argument can be rejected out of hand - Ms. Daniel is obviously a lawyer.

89I have reviewed Ms. Weaver’s affidavit, the initial retainer agreement and the report itself. Having done so, I find that the report does not contain legal advice and is not protected by solicitor-client privilege.

90Ms. Daniel’s retainer letter states that her mandate is to “conduct a process review audit respecting the reporting of allegations about former employee [E.L.].” She goes on to state that “I have been asked to make findings of fact respecting my enquiry.” Later in that same document she states “In the event that Kinark requires me to prepare for and/or participate in a future legal proceeding, my hourly rate specified above will apply. In that event, a new retainer will be prepared.” Nowhere in the retainer, or in the lead up to the retainer as summarized by Ms. Weaver is Ms. Daniel asked to provide legal advice. Also of note, Kinark agreed to indemnify Ms. Daniel against any and all claims or other proceedings that might be incurred in defending claims arising out of the mandate, except where the loss resulted from negligent, dishonest or fraudulent acts. One would not expect to see such a term where a lawyer was being retained to provide legal services.

91Ms. Daniel’s retainer was expanded on or about December 1, 2020. As Ms. Weaver states in her affidavit, it was expanded “to include recommendations from Ms. Daniel on Kinark’s internal processes.” This is also noted in the report itself. There is no statement in either the affidavit or the report that Ms. Daniel was asked for legal recommendations. I note that Kinark did not provide the email from December 1, 2020 by which the mandate was expanded. I note that, per Ms. Daniel’s invoice, which was provided as an attachment to Ms. Weaver’s affidavit, Ms. Daniel spent two hours that same date amending the report to add recommendations. In total, Ms. Daniel spent twenty-seven hours on interviews and drafting the Report.

92The report is thirty-five and a half pages long. The recommendations are at the end of the report and are one page long. The recommendations contain no legal analysis, nor are they legal recommendations. Without disclosing the specific content of those recommendations, they are recommendations which are related to Kinark’s processes.

93The facts here are different than the facts in Gower. In Gower, as set out at paragraph 5 of that decision, the lawyer was retained “to make recommendations and provide advice in respect of the legal implications of any of those recommendations.” The lawyer was also asked to examine “the possibility of litigation including a wrongful dismissal action; a grievance under the complainant’s collective agreement or a human rights complaint and advise Tolko how to act to avoid, if possible, litigation and as well as to advise if litigation did happen, what would be the probabilities of the success.” The retainer in Gower specifically identified that legal advice was being provided, and that it would be subject to solicitor-client privilege. The report which was produced contained sections entitled “legal analysis” and “legal advice”. None of these facts are present in this case.

94Kinark argues that “legal advice” is not confined merely to telling the client the state of the law. Relying on paragraph 89 of Slansky v. Canada, 2013 FCA 199, Kinark argues that legal advice “includes advice as to what should be done in the relevant legal context. It also includes providing advice in a legal context for which a lawyer’s skills and knowledge are necessary, even if the services might not be regarded as the provision of legal advice in the ordinary sense.” [emphasis in original]. This quote, taken from Kinark’s factum, is a direct quote from Slansky.

95In Slansky, the applicant had initiated a complaint to the Canadian Judicial Council about the conduct of an Ontario Superior Court Judge. The Chairperson of the CJC dismissed the complaint and closed the file. The Chairperson relied on a report from counsel, Professor Martin Friedland, who he had retained to inquire into Mr. Slansky’s allegations. Mr. Slansky brought a judicial review of the Chairperson’s decision. The CJC refused to disclose Professor Friedland’s report, taking the position that the report constituted legal advice and was also subject to public interest privilege. The majority of the Federal Court of Appeal found that the report constituted legal advice and ought not to be disclosed. It did so by reference to the retainer as well as the context of that retainer, including the CJC’s Policy respecting the role of counsel. It found, having regard to the fact and the policy that “inquiring into [the] allegations in order to assist the Chairperson in making a decision on whether to refer the complaint to a hearing panel called for an analysis of documents and tapes that required the skills and knowledge of a lawyer. And not just any lawyer, but one like Professor Friedland who had an extensive knowledge of criminal law and criminal trial process.” (Slansky at paragraph 98). The purpose of Professor Friedland’s retainer was to assist the Chairperson in making a decision as to whether to refer the complaint of judicial misconduct to a hearing panel. The Federal Court of Appeal found that the activities he undertook in that case were included in the role of counsel as set out in the CJC Policy and the documents being analyzed called for a lawyer’s expertise (Slansky at paragraph 100).

96The context in this case does not assist Kinark in its argument that the Report is subject to solicitor-client privilege. There was no legal advice requested or given. The work undertaken and the recommendations which were given did not require a lawyer’s expertise. Accepting Kinark’s argument in these circumstances would amount to a finding that every time a lawyer conducts a workplace investigation and makes non-legal recommendations, the work is protected by solicitor-client privilege because a lawyer has done the work. As set out in Gower and Durham Regional Police v. Ontario Civilian Police, that position is not correct.

97In this case I find that the work Ms. Daniel was asked to perform was not legal advice or related to the provision of legal advice. In so finding, as the test in Gower is conjunctive, I do not need to consider the question of whether there was a solicitor-client relationship. I therefore make an Order requiring Kinark to produce the Daniel Report to the Plaintiffs and to E.L..

Costs

98There has been mixed success on this motion. As a result, I make no order as to costs.

CONCLUSION

99As set out above, I have made the following Orders:

a. The Parties must seek an Order from the Ontario Court of Justice with respect to the youth records in this matter;

b. The Defendants’ motion for leave to issue a third-party claim against E.N. is denied;

c. The Defendants’ motion to compel answers from T.H. which were refused at discovery is granted with the exception of the question of what T.H.’s sister is studying. This order is subject to the parties obtaining an Order from the OCJ in respect of answers which engage the YCJA;

d. The Plaintiffs’ motion for production of the Daniel Report is granted;

e. No Order as to Costs.

100I want to thank counsel for both parties for their work on the motion. It was well argued on both sides.

Associate Justice Glick

Date: July 13, 2026

CITATION: T.H. v. Kinark Children and Youth Services, 2026 ONSC 4001

Footnotes

1. 1The Plaintiffs also cite two paragraphs in Z.F.’s affidavit to support this assertion. Those paragraphs though were redacted before the motion was argued. This was as a result of an agreement between the parties to address Kinark’s concern about Z.F.’s affidavit. Kinark had sought an order striking out the affidavit. The parties resolved the issue before the motion was heard by redacting a number of paragraphs from the affidavit.