Author: Dan Michaluk

Case Report – Court rebuffs argument for delayed production of Pierringer agreement

On June 28th, the Ontario Superior Court of Justice ordered production of a proportionate liability (Pierringer) settlement agreement to a group of non-settling defendants despite an argument that production was unnecessary until after trial.

The matter was about a young boy who died from injuries he suffered after a folding cafeteria table he was moving across his school gymnasium collapsed. His family brought an action against the school board and a separate action against the designer, manufacture and distributors of the table. The school board settled before the hearing of a motion to consolidate the two actions. It entered a “Pierringer” like agreement with the plaintiffs – that is, the plaintiffs released the school board from the action on an agreement to reduce their claim against the non-settling defendants by the school board’s share of the total liability.

Master McLeod rejected the plaintiffs’ argument that the agreement should only be disclosed after the trial, when damages have been assessed. In doing so, he stressed the importance of full production to planning and strategy:

Calculation is a central issue at trial but knowing the amount actually in dispute is also critical to litigation planning and strategy. In general a defendant is entitled to know what the actual amounts in dispute are so that informed decisions may be made about whether to defend or offer to settle and what procedures may or may not be justified.

The principle of proportionality makes the actual damages as opposed to the pleaded damages additionally relevant because if the parties do not know what amounts are really at stake it is difficult to make informed decisions including proportionality as a principle. Proportionality is supposed to inform not only the decisions of the court concerning the application of the rules but also to inform the discovery planning that is now a mandatory step….

Other aspects of a partial settlement may also be relevant. For example it would be relevant if the former defendant has obligated itself to give access to all of its documents, to make witnesses available for interviewing or conversely if the plaintiff has restricted its ability to access such documents or information. It would be relevant if the former defendant has contractually bound itself not to co-operate with the other defendants or has agreed that it will extend such co-operation. One reason these kinds of agreements are relevant is because they may bring the documents or witnesses into the possession, power or control of the plaintiffs. This will be important for production and discovery planning. Similarly the former defendant may or may not have obliged itself to preserve documents and other evidence. All of this will be important for the non settling defendants to know so that they may bring appropriate motions or factor this into the discovery plan.

Master McLeod did, however, decline the non-settling defendants’ request for an order allowing non-party discovery of the school board. Although it was apparent the school board was in custody of relevant records and employed a number of witnesses, Master McLeod held that the motion for non-party discovery was nonetheless premature until the continuing defendants completed discovery of the plaintiffs. Instead, he issued a generally-worded preservation order directed at the school board.

Noonan v. Alpha-Vico, 2010 ONSC 2720 (CanLII).

Management Counsel’s Perspective – Eight Investigation Traps and What to do About Them

Earlier this week I sat in on a great presentation on interviewing techniques by a former police officer who’s now a corporate security pro. Pretty fascinating subject. After, I gave a short presentation on some of the common flaws we (as management counsel) see in internal investigations.

Here are my slides.

Case Report – Case about filing “unofficial transcript” of administrative tribunal hearing to proceed at BCCA

On August 10th, the British Columbia Court of Appeal granted leave to appeal a decision that permitted a judicial review applicant to file a self-produced transcript of a British Columbia Human Rights Tribunal hearing.

The applicant first asked the Tribunal to produce an official transcript and was denied. It then took recordings and produced its own transcript with the Tribunal’s consent pursuant to a provision in the Tribunal rules that specifies that such a recording, “is not part of the official record of the tribunal’s proceedings.”

The applicant lost on the merits and brought an application for judicial review. It alleged that the Tribunal breached procedural fairness by declining to record the hearing itself and also raised bias and “unreasonable findings of fact not supported by the evidence” as grounds for review. The applicant filed its “unofficial transcript” and the respondent was unsuccessful on its motion to strike.

In granting leave to appeal, the Court said:

Whether this development accords with the complex framework of modern administrative law in British Columbia seems to be a question that should be fully argued and canvassed. If leave were to be denied and the judicial review were to proceed, the issue could become lost in the ‘factual matrix’ of the case and the human rights and labour law communities would be left in doubt on this important evidentiary point. As it is, the hearing of the substantive issue before the court below has been adjourned a this appeal could be heard without delay.

SELI Canada Inc. v. Construction and Specialized Workers’ Union, Local 1611, 2010 BCCA 371 (CanLII).

Information Roundup – 12 August 2010

Here are some recent tweets you may be interested in:

Note the Craig Ball link on poor e-discovery process. It’s somewhat related to the subject of legal project management, a subject of interest. In fact, I’m speaking at the Canadian Bar Association 2010 Legal Conference & Expo next Tuesday on legal project management – giving the practitioner’s perspective.

I’ve been doing lots of project planning lately, mainly as part of developing proposals for selling legal services on for a project based fee. I’m just developing my key thoughts for next Tuesday, but here are a few potentials. First, project planning it’s not hard at all, but has nothing to do with the law and takes quite a lot of time to do right. Second, project management is easy if you have good project plan. And third, it will often be legitimate to charge a fee for creating a project plan. Back in my consulting days I recall being paid some very healthy fees to develop process-driven proposals that were based on creativity and had real value. Though I’d rather be doing law than planning to do law, I understand that planning delivers real client value. It only seems fair that it be remunerated.

Thanks for reading, and see ya!

Dan

Case Report – Search warrant indexing challenge to proceed without Attorney General as respondent

On July 27th, Moir J. of the Nova Scotia Supreme Court issued a preliminary ruling in a novel Canadian Broadcasting Corporation application in which it is seeking an order requiring the Nova Scotia Provincial Court to index its search warrants based on the open courts principle and the Charter.

In his preliminary ruling, Moir J. held that the Attorney General, as a representative of the executive branch of government, was not a proper respondent because the executive cannot control the judiciary’s records. Though acknowledging that the application “seems to concern a clerical, or mechanical, function,” he held that the matter, in its essence, concerns the sufficiency of access to records in order to satisfy the open courts principle. Moir J. held that the application can continue with the Chief Judge of the Provincial Court as a respondent and the Attorney General, as financial supporter of the judiciary, as an affected party.

Canadian Broadcasting Corporation v. Nova Scotia (Attorney General), 2010 NSSC 295 (CanLII)

Case Report – Field search okayed by adjudicator without hearing from e-mail custodians

I’ve been following e-mail search FOI cases given their relevance. On July 21st, the IPC/Ontario upheld a such a search. The adjudicator rejected an argument from the requester that the institution should adduce evidence from the e-mail custodians who were asked to search for responsive records (and not just the individuals who coordinated the search). She did note that the requester, having declined to participate in the hearing, had not given the IPC any reason to doubt the bona fides of the institution’s search.

York University (Re), 2010 CanLII 44189 (ON I.P.C.)

Case Report – Arbitrator makes protective order governing production of sensitive docs

On May 14th, Professor Etherington imposed the following protective terms to govern the production of clinical research protocol in a labour arbitration:

  • The copies of documents produced under paragraph 1 should be redacted only to the extent required to prevent the unnecessary disclosure of personal health information. Normally such prevention should only require the redaction of the names of patients involved in clinical trials. Redaction for any other purpose should only be done with the consent of opposing counsel or the approval of the arbitrator.
  • The production of the documents should be to the Union’s legal counsel only.
  • Union counsel may disclose the documents to a potential witness (including the grievor), to the Union’s advisor and to members of counsel’s law firm, only as necessary for preparation for the hearing and with appropriate redactions of information that does not pertain to a potential witness.
  • Counsel and the Union, and all other participants in this proceeding, shall not use or disclose the produced documents or information therein for any purpose other than this proceeding.
  • Following the final disposition of this matter, the documents/materials shall be returned to the Employer. Union counsel shall shred any working copies made and confirm this to the Employer.

University of Western Ontario v. University of Western Ontario Staff Assn. (Ansari Grievance), [2010] O.L.A.A. No. 262 (Etherington) (QL).

Case Report – Federal Court addresses effect of requester’s death on a denied access request

On April 29th, the Federal Court ordered Correctional Services Canada to provide a requester’s personal information to the Elizabeth Fry Society on the basis of a consent she signed before she committed suicide.

The requester alleged mistreatment by CSC and sought the help of the Society. The Society made a request for access to personal information on her behalf pursuant to a consent that authorized disclosure to the Society. In the consent, the requester stated the disclosure was “for the purpose of assisting me.” The CSC failed to answer the request in time and was deemed to have refused it on August 17, 2009, about two months before the requester committed suicide.The CSC later denied the request to the Society and, in response to the Society’s application, claimed the Society had no standing as a result of the requester’s death.

The Court held that the Society continued to be authorized to act on the requester’s behalf after her death. It mentioned briefly that the purpose of the consent continued after her death, but its reasoning does not rest heavily on the language of the consent. It said, for example, “I conclude that the Act intended that an individual’s right to grant access to their personal information survives their death.” This finding allowed the Court to conclude that the Society had standing to file an application to the Federal Court as an “individual who has been refused access to personal information.” It is questionable whether this fact limits the judgement, but the Court did stress that the requester was alive and being represented by the Society on the date of the deemed refusal.

Canadian Association of Elizabeth Fry Societies v. Canada (Public Safety and Emergency Preparedness), 2010 FC 470 (CanLII).

Case Report – BCCA telephone recording case deals with spousal privilege and the reasonable expectation of privacy concept

The British Columbia Court of Appeal issued a judgement on July 21st with two findings of note – one on the whether spousal privilege applies to communications intercepted by a third-party and another on the protection of information subject to a reduced yet reasonable expectation of privacy.

The matter involved recordings of telephone calls made from a correctional facility by an accused person, some to his spouse. The facility received a production order, listened to the recordings for the first time and turned them over to the Crown. They apparently contained statements favorable to the theory on which the Crown’s prosecution was based but no “direct evidence of criminal activity.” The accused person argued that the recordings were inadmissible based on spousal privilege and section 8 of the Charter.

The Court first rejected the spousal privilege claim. It held that, under the Canada Evidence Act, spousal privilege does not preclude a third-party from giving evidence about statements made from one spouse to another. The one exception, explained the Court, is for private communications between spouses that are intercepted by a lawful wiretap – a result derived from a provision the Criminal Code that deems intercepted communications to maintain their privileged status. The Court held that the deeming provision (section 189(6)) did not apply in the circumstances.

The Court then upheld the section 8 claim. It held that the production order served on the facility was invalid because of insufficient grounds and held that disclosure by the facility to the Crown was therefore made in breach of the accused person’s reduced but nonetheless reasonable expectation of privacy. In reaching this finding, the Court gave effect to the regime for recording and reviewing inmate telephone calls authorized under the British Columbia Correction Act, which recognizes a facility’s right to record, review and disclose calls within certain parameters. This privacy-security balancing regime led the Court to apply the reasonable expectation of privacy concept in a more nuanced manner than the “all or nothing” manner in which it is often applied.

R. v. Siniscalchi, 2010 BCCA 534 (CanLII).

Information Roundup – 25 July 2010

Hello. Here are some recent tweets from within the domain:

What’s going on with me? Well, it’s mid-summer and I do lots of post-secondary sector work, so it’s quiet. I did a respondent’s factum on a great OHSA appeal that’s coming up in October and even have time to put it aside and proof it with a fresh head. (I may tell you about it when it’s over, but not now.) Also having fun at home with a one and three year old. Music appreciation mornings on the weekend are the best. I’ve been looking forward to introducing the kids to the beauty of the ocean and surfing, but that will come later. This weekend we went through old Queen videos videos on YouTube and I could tell Hugo was pretty impressed with Freddie Mercury in his glory. And Pens is a dancer. Cool.

See Ya!

Dan