Tzimas J.

The plaintiff sought leave under Rule 48.04 to bring a Rule 30.10 motion for non-party production from the Caledon O.P.P., alleging an "undercover wrongful investigation" by her employer's behest.

The motion was brought late in the trial.

The defendant opposed, arguing no unexpected change in circumstances and lack of legal foundation.

The court found no evidence in recent FOIPPA disclosures to support the plaintiff's claim of a parallel investigation or to contradict previous denials by the Ministry of the Attorney General.

The motion for leave was dismissed as no substantial or unexpected change in circumstances was established. interesting_citations_summary: > This decision clarifies the high bar for obtaining leave under Rule 48.04 to bring a Rule 30.10 motion for non-party production late in a trial.

It emphasizes that a party must demonstrate a "substantial or unexpected change in circumstances" and that mere speculation or misinterpretation of disclosure documents is insufficient.

The court also touches upon the proportionality of administrative delays in responding to information requests in the context of access to justice. final_judgement: "The plaintiff's motion for leave to bring a Rule 30.10 motion for non-party production was dismissed." winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2016 decision_number: 4378 file_number: "CV-09-5805-00" source: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4378/2016onsc4378.html" cited_cases: legislation: - title: "Rules of Civil Procedure" - title: "Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.

F.31" case_law: [] keywords: - Motion for leave - Non-party production - Rule 48.04 - Rule 30.10 - Unexpected change in circumstances - Freedom of Information and Protection of Privacy Act - OPP investigation - Self-represented litigant areas_of_law: - Civil Procedure - Evidence --- # Court File and Parties **COURT FILE NO.:** CV-09-5805-00 **DATE:** 2016-06-30 **SUPERIOR COURT OF JUSTICE - ONTARIO** **RE:** Bonnie McDonald, Plaintiff **and** The Regional Municipality of Peel, Defendant **BEFORE:** Tzimas J. **COUNSEL:** Bonnie McDonald, Self-Represented Carla Black, Counsel, for the Defendant **HEARD:** June 28, 2016 --- # Endorsement [1] The Plaintiff, Ms. McDonald brought a motion to obtain the court’s leave, pursuant to Rule 48.04, to bring a motion pursuant to Rule 30.10(1) for the production of documents from a non-party, the Caledon O.P.P. [2] Ms. McDonald acknowledged in her materials that she was making this request with her trial well underway.

She also acknowledged her understanding that setting down a matter for trial is not a mere technicality.

However, she submitted that there has been a substantial or unexpected change in her circumstances that requires her to bring a Rule 30.10 motion at this late date.

She submitted that it would be manifestly unjust for her to continue with the trial without the benefit of the records which she expects would finally substantiate her allegation that the OPP was conducting a wrongful investigation against her at the behest of her employer. [3] The Defendant, The Regional Municipality of Peel, (Peel), opposed the granting of the requested leave and submitted that a) the court’s leave at this late stage would cause significant delay in the trial; b) there were no unexpected changes in Ms. McDonald’s circumstances to warrant the granting of leave; and c) in any event, the proposed Rule 30.10 motion was without a legal foundation. [4] To understand why this motion is so significant to Ms. McDonald, it is important to consider it against the backdrop of her overall claim.

A significant component of Ms. McDonald’s claim against Peel is anchored on her allegation that the OPP initiated an investigation against her at the behest of her employer.

In her claim and in her evidence before the court, Ms. McDonald submitted that the said investigation did occur, that it resulted in undercover surveillance of her and her family and that this situation caused her significant emotional and psychological distress.

She said in her testimony in chief that she had very little evidence to support her claim but she knows that she has suffered immensely, that she has been under surveillance and the answers and evidence will be found in the OPP records. [5] In preparation for trial, and as far back as October 2011, Ms. McDonald brought a Rule 30.10 motion seeking third party records from the FBI, the RCMP, and the OPP.

She believed that all of these agencies had her under investigation. [6] Ms. McDonald became more convinced of these suspicions after December 17, 2006, when she was stopped and investigated for impaired driving.

On that occasion, Ms. McDonald explained that when she was stopped, she concluded that there were actually two investigations underway.

One related to the impaired driving and the other was the “undercover wrongful investigation”.

She came to that conclusion because she thought an individual who was there that night was an undercover agent who was working on the “wrongful investigation”. [7] In response to her Rule 30.10 motion, the Ministry of the Attorney General expressly told Ms. McDonald that in its review of the relevant records, there was no undercover investigation underway.

The contents of that communication are critical to review: You indicate that you were criminally charged with impaired driving on December 17, 2006.

You have a copy of the criminal disclosure of the investigation regarding those charges.

I understand that you do not to seek to use these records in your current civil action against the Regional Municipality of Peel (“Peel”).

You are requesting records in relation to an “undercover investigation” conducted by an undercover investigator during the night of December 17, 2006.

Our office and the OPP have conducted an extensive search regarding your request for these undercover investigation records.

We are unable to find any responsive records.

I can confirm that the OPP did not conduct any undercover investigation on you.

Accordingly, I trust that you will withdraw your motion for non-party records against the OPP/Crown.

You can withdraw your motion against us by indicating as such in the Confirmation of Motion form. … (my emphasis). [8] The Rule 30.10 motion proceeded on March 7, 2012 with respect to the other police agencies.

It is evident from the court’s endorsement that Ms. McDonald advised the court of the OPP’s position.

Peel also highlighted the court’s finding that the Rule 30.10 motion, as it related to other police investigations by any police, including the F.B.I. and the R.C.M.P. to be without any foundation.

The court also noted that Ms. McDonald could “renew her request only if she were able to produce a sworn affidavit from a third party to support her assertions that such an investigation existed or bring forward reliable evidence that such an investigation occurred”. [9] In her present motion, Ms. McDonald submitted communications from April 12, 21 and 28, 2016 arising out of her request under the Freedom of Information and Protection of Privacy Act, (FOIPPA), R.S.O. 1990, c.

F.31 in support of her contention that unexpected changes in her circumstances have emerged that would support her contention that she was under a wrongful investigation by the OPP and that she should be able to obtain those records to prove her claim.

The communication of April 12, 2016 from the Ministry of Community Safety and Correctional Services entitled “Supplemental Decision Letter” provided her with pages 3,4, and 5 of the OPP’s records and consisted of an Occurrence Summary and a General Occurrence Report.

The first two pages were withheld on the basis of specifc exemptions contemplated by FOIPPA.

Specifically those pages were said to identify personal information of four individuals who were either witnesses or the complainant that led to the impaired driving charges, a statement by one of the affected parties, and the police’s operational codes. [10] The letter dated April 21, 2016, also from the Ministry of Community Safety and Correctional Services, purported to respond to an inquiry from an adjudicator at the Information and Privacy Commission of Ontario about the contents of the disclosure and the reasons for which the information on pages one and two of the OPP records were withheld.

On April 28, 2016, the Information and Privacy Commission of Ontario confirmed the appeal and invited Ms. McDonald to file her representations. [11] Ms. McDonald submitted that in her view these communications confirmed the existence of an undercover investigation and amounted to a reversal of the Ministry of the Attorney General’s original representation from October 2011.

The basis for that interpretation and conclusion was the reference in these latest communications to four witnesses and / or a complainant.

Ms. McDonald recalled there being only two witnesses.

It stood to reason that the other two must be connected to another investigation, namely the wrongful investigation.

If Ms. McDonald could obtain the names of the four individuals who are implicated she could begin to make the connections to her employer. [12] In my review of Ms. McDonald’s evidence, I have significant difficulty with her contention that the communications of April 12, 21 and 28, 2016 confirm the existence of an undercover investigation.

Nothing in the communications supports such a conclusion.

Having reviewed these documents from cover to cover, all of the information revolves around the impaired driving investigation.

There is no reference to any other investigation underway.

The most crucial piece of information in this collection of documents is the Ministry’s indication that the two pages that were withheld contained information that related to the impaired driving investigation.

I place significant emphasis on the observation that based on its review of the contents of the records, the Ministry concluded that: “it is clear that the personal information was compiled by the OPP and is therefore an identifiable part of an investigation of a potential violation of the law, which led to criminal charges being laid”.

Those criminal charges were none other than the impaired driving charges. [13] When I combine this latest communication with the communication of October 2011, containing the Ministry of the Attorney General’s unequivocal denial of any undercover investigation, I see nothing to conclude that there has been a change in circumstances. [14] Insofar as Ms. McDonald’s recollection of the number of witnesses or complainants who were allegedly involved in the impaired driving investigation is concerned, her submission that she only knew of two individuals, that she recalled an undercover investigator, and that there were definitely not four individuals who were implicated, is of little assistance to this court.

Her knowledge of particular witnesses does not mean that there were not others who were involved in the impaired driving investigation.

What is most important is that nowhere in the latest communications is there any reference to a parallel or other investigation underway.

Of the four individuals who are referenced, they are described as either witnesses or a complainant.

There is no indication that the information being withheld concerns another investigation, or an investigator. [15] Given this finding, I can only conclude that the Ministry’s communication of October 2011 amounted to a complete answer to Ms. McDonald’s motion and that has not changed.

There is nothing before this court to suggest that the Ministry’s conclusion of 2011 ought to be revisited in any way or that there should be renewed inquiries. [16] Ms. McDonald would have been in a very different position if the results of the April 2016 disclosure made reference to a parallel investigation or other kind of investigation.

That would have cast doubt on the October 2011, communication.

But that is not the case. [17] Given Peel’s concern about the grave delay that the granting of leave would create, I wish to note that the concern over the delay would be less pronounced if Ms. McDonald were able to establish a substantial and unexpected change.

Although the delay would not be an insignificant consideration, given the gravity of Ms. McDonald’s allegations, a delay of four months, could be addressed with the possibility of an award of interim costs thrown away or other similar remedy.

Positive evidence of a second investigation, if that existed, would tip the analysis in favour of granting leave for Ms. McDonald’s Rule 30.10 motion, even if that resulted in a delay in the continuation of the trial. [18] I would hasten to add that given the Ministry’s past review of this matter, I would wish to hear from the Ministry and understand why counsel there could not conduct an update on a past inquiry and why this matter could not be expedited given the particular circumstances of this case.

The written representation to Ms. McDonald that Crown Law Office Civil would require at least sixteen weeks before it could initiate its own inquiries has the air of being disproportionate with the task at hand and with the broader objectives of the public’s access to justice.

Had I granted leave to Ms. McDonald to bring her Rule 30.10 motion, this would have been an issue to be explored further.

There is no need for such a discussion given the outcome of this motion. [19] On the subject of costs, it is appropriate that submissions be reserved to the conclusion of this trial. --- Tzimas J. Date: June 30, 2016