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Civil Litigation - Discovery - General. Budds' BMW v Joffe
In Budds' BMW v Joffe (Div Court, 2023) the Divisional Court considers a point about discovery and privilege:[7] The learned motions judge erred when she concluded that privilege had been waived over the statement because the statement had been discussed at the Examination for Discovery, the Defendants had provided particulars of it, and had agreed to provide more particulars.
[8] In doing so, Her Honour failed to apply well established authority that holds that where a party on Discovery is asked for facts contained in his or her file relating either to his own case or to that of his opponent, he or she must disclose the relevant facts contained in any statement notwithstanding that the source of information is a privileged report or document (see: Pearson v. Inco Limited, 2008 CanLII 46701 (ON SC) at para 15, Warman v. National Post Company, 2015 ONSC 267 at para 56, Sangaralingam v. Sinnathurai, 2011 ONSC 1618 (Div. Ct.), at para 1-2 and 20). . Grogan v Ontario College of Teachers
In Grogan v Ontario College of Teachers (Div Court, 2023) the Divisional Court faced a R59.06 set aside motion with respect to a several years old Divisional Court appeal (a dismissal) of a revocation of a teacher's certificate under the Education Act. The case was unique as the applicant sought to introduce fresh evidence from one of the-then adjudicators of the Discipline Committee of the Ontario College of Teachers who ordered the revocation, such adjudicator resigning in the course of that adjudication. This present R30.06 motion ["Where Affidavit Incomplete or Privilege Improperly Claimed"] was in aid of this set aside motion, and sought to determine "whether this court should order the College to produce notes created by Ms. Ferenczy while she was a member of the Discipline Committee adjudicating the case".
In this quote the court considers that the underlying R59.06 set aside motion is grounded in fresh evidence ["Rule 59.06(2)(a) “on the ground of fraud or of facts arising or discovered after it was made[.]”"], and holds that the applicant's reliance on evidence to be produced in the discovery process was improper. Essentially the court is saying that the applicant should have such evidence before they make the R30.06 motion:[13] In addition, I note that Ms. Grogan seeks the production of documents in the context of her motion to set aside the Decision under Rule 59.06(2)(a) “on the ground of fraud or of facts arising or discovered after it was made[.]” The very basis for the Applicant’s motion to set aside is facts that arose or were discovered after the decision was made. A motion under Rule 59.06(2)(a) must thus be grounded in facts, which the moving party bears the burden of proving. In bringing a motion to set aside, the moving party is representing that they have sufficient evidence to support that the outcome would have been different had that evidence been available. A motion to set aside under Rule 59.06(2)(a) is not an opportunity to seek discovery of facts that would enable a party to set aside an order. Such an application of the rule would significantly undermine the principle of the finality of decisions, as further discussed below. . Grogan v Ontario College of Teachers
In Grogan v Ontario College of Teachers (Div Court, 2023) the Divisional Court faced a R59.06 set aside motion with respect to a several years old Divisional Court appeal (a dismissal) of a revocation of a teacher's certificate under the Education Act. The case was remarkable as the applicant sought to introduce fresh evidence from one of the-then adjudicators of the Discipline Committee of the Ontario College of Teachers who ordered the revocation, such adjudicator resigning in the course of that adjudication. This present R30.06 motion ["Where Affidavit Incomplete or Privilege Improperly Claimed"] was in aid of this set aside motion, and sought to determine "whether this court should order the College to produce notes created by Ms. Ferenczy while she was a member of the Discipline Committee adjudicating the case".
In this quote the court considers the nature of a R30.06 motion:[9] The Applicant brings a motion for production under Rule 30.06, which states as follows:
Where Affidavit Incomplete or Privilege Improperly Claimed
30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may, (a) order cross-examination on the affidavit of documents; (b) order service of a further and better affidavit of documents; (c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and (d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.
[10] Rule 30.06 applies to affidavits of documents. Under Rule 30.03(1) of the Rules, a “party to an action” is required to serve an affidavit of documents. Here, the underlying proceeding is a statutory appeal to this court under s. 35 of the College of Teachers Act, 1996, S.O. 1996, c.12. There is no requirement that a party to a statutory appeal serve an affidavit of documents. The Applicant was unable to provide any authority to support that Rule 30.06 is applicable in a statutory appeal before the Divisional Court, where no affidavit of documents is required. As a result, I am not satisfied that Rule 30.06 provides a basis on which the production of documents can be ordered in the circumstances of this proceeding. . Polera v. Wade
In Polera v. Wade (Ont CA, 2015) the Court of Appeal affirmed the point that once a party introduces at trial evidence drawn from discovery that the entire discovery content becomes available to all parties for similar use in evidence:[30] First, the motions judge was entitled to consider Ms. Polera’s impugned discovery evidence. Once the appellant relied on her discovery evidence, he opened up its use to both parties. As a result, the motions judge was entitled to consider it for all issues.
[31] On this point, we agree with the analysis of D.M. Brown J. (as he then was) in Lawless v. Anderson, 2010 ONSC 2723 (CanLII), 188 A.C.W.S. (3d) 1006, at para. 12, aff’d on other grounds, 2011 ONCA 102 (CanLII), 276 O.A.C. 75:As a general rule when a party places into evidence answers given by an opposite party on her examination for discovery, such evidence is available to either party in the same manner as any other evidence. . Canada v. Thompson
In Canada v. Thompson (Fed CA, 2022) the Federal Court of Appeal considered when a question is relevant for the purposes of discovery:[30] In Canada v. Lehigh Cement Limited, 2011 FCA 120, this Court determined that a question is relevant for discovery purposes if the answer might assist the asking party in advancing its case or damage the case of the other party:34 The jurisprudence establishes that a question is relevant when there is a reasonable likelihood that it might elicit information which may directly or indirectly enable the party seeking the answer to advance its case or to damage the case of its adversary, or which fairly might lead to a train of inquiry that may either advance the questioning party's case or damage the case of its adversary. Whether this test is met will depend on the allegations the questioning party seeks to establish or refute…. [31] This principle was reiterated in Madison Pacific Properties Inc. v. Canada, 2019 FCA 19, at paragraph 23. . Canada v. CHR Investment Corporation
In Canada v. CHR Investment Corporation (Fed CA, 2021) the Federal Court of Appeal considered principles of discovery under the Federal Rules, here in a tax context [paras 14-42].
. Imperial Oil v Jacques
In the Quebec case, Imperial Oil v Jacques (SCC, 2014), the Supreme Court of Canada held that investigative evidence obtained by the Crown (here the Competition Bureau) for use in criminal proceedings was not by it's nature immune from third party civil discovery procedures, though adequate protections had to be ordered to ensure that it remained confidential amongst the counsel of the civil parties. While the court speaks broadly of the public interest principles underpinning it's decision, and accepts that the Criminal Code allows such disclosure, the case must still be reviewed carefully for it's application under other provincial civil disclosure regimes.
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