Ontario (Ministry of Labour) v. J R Contracting Property Services, 2011 ONCJ 207

Case No. 4860 999 09 05002161 Citation: Ontario (Ministry of Labour) v. J R Contracting Property Services , 2011 ONCJ 207 ONTARIO COURT OF JUSTICE Toronto Region In the matter of the Provincial Offences Act , R.S.O. 1990, c.P.33. B E T W E E N: ONTARIO (MINISTRY OF LABOUR) Crown -and- J R CONTRACTING PROPERTY SERVICES, TEISHA (TINA) LOOTAWAN, and ANDREW J. HANIFF Defendants INTERIM DECISION ON MOTION FOR PRODUCTION OF DOCUMENTS Counsel: Ms. C. Ashton, Wilson Vukelich LLP, for Ms. Lootawan, Moving Party Mr. S. Weisner, for JR Contracting Property Services Ms. S. Loosemore and Ms. J. Malabar, Crown Counsel (MOL) Ms. Ian, Student-at-Law, assisting Crown Counsel

Hearing Date: April 5, 2011 Written Interim Decision Released: April 19, 2011 INTRODUCTION: [ 1 ] Jeff Lomer, an Inspector with the Ministry of Labour, has laid seven charges against the defendants herein resulting from an accident that occurred on October 15, 2008 that resulted in serious injury to an alleged worker, under the Occupational Health and Safety Act , R.S.O. 1990, c.O.1, as amended. [ 2 ] A motion was brought by Ms. Ashton, counsel for Ms.

Lootawan, seeking an Order requiring the Crown to produce all documents that are or are regarding communications, including letters, electronic messages, and notes, between Ministry of Labour Inspector Jeffrey Lomer and then Ministry of Labour Crown Counsel Brian Blumenthal, relevant to this proceeding.

In particular, she argues that her client needs these documents in order to be able to make full answer and defence. [ 3 ] Crown counsel opposes this motion, on the basis of solicitor-client privilege, or in the alternative, work product privilege, between the Investigator and the Crown Counsel, and relies upon the Affidavit of Jeffrey Lomer, sworn April 4, 2011, in which he attests that the sole purpose for which the emails and notes were generated was the seeking and receiving of legal advice, and that he does not agree to any waiver of his privilege.

ISSUES: [ 4 ] The following issues arise from this motion: (1)Does Mr. Lomer enjoy a solicitor-client privilege over these documents? (2)If the answer is yes, do they fall within any exceptions or waiver of that privilege? (3)Alternatively, does Mr. Lomer enjoy work product privilege over these documents?

(4) If the answer is yes, do they fall within any exceptions or waiver of that privilege?

(5) DECISION: [ 5 ] I have inspected the documents at issue, and they fall either within work product privilege, or solicitor-client privilege. They do not fall within any exceptions nor has Mr. Lomer waived his right to privilege. The motion is dismissed.

ANALYSIS: [6] The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in itspossession are not the property of the Crown for use in securing a conviction, but are the property of the public to be used to ensure thatjustice is done. The obligation to disclose is subject to a discretion to withhold information, for reasons of privilege, or to protect theidentity of informers. The Crown's discretion is reviewable by the trial justice. See: R. v.

Stinchcombe (SCC), [1991] 3S.C.R. 326. [7] Legal advice given by Crown counsel to a member of the RCMP is protected by solicitor-client privilege, in connection to criminalinvestigations, see: R. v. Campbell (SCC), [1999] 1 S.C.R. 565 at para. 49. [8] However, communications between a police officer and Crown counsel about who is to be a Crown witness is not protected bysolicitor and client privilege, see: Girourard v. Canada (Attorney General), [1982] B.C.J. No. 1655, at para. 9. Solicitor-Client Privilege Is A Rare Class Privilege: [9] As Justice Lebel for the Supreme Court of Canada noted in Maranda v.

Richer, 2003 SCC 67 , [2003] 3 S.C.R. 193, at para.11, consistent with the line of decisions rendered by it since Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821, whichstressed the social importance of solicitor and client privilege, whose purpose is to protect the confidentiality of communication betweensolicitor and client (see: R. v.

Gruenke, (SCC), [1991] 3 S.C.R. 263 at p. 289), “solicitor-client privilege is one of therare class privileges recognized by the common law.” Justice Lebel then spoke of the strengthening of solicitor-client privilege in para.12 of Maranda, as follows: The decisions of this Court have consistently strengthened solicitor-client privilege, which it now refuses to regard as merely anevidentiary or procedural rule, and considers rather to be a general principle of substantive law (see Lavallee, Rackel & Heintz, at para.49).

The only exceptions to the principle of confidentiality established by that privilege that will be tolerated, in the criminal law context,are limited, clearly defined and strictly controlled (R. v. McClure, [2001] S.C.R. 445, 2001 SCC 14; R. v. Brown, [2002] 2 S.C.R. 185,2002 SCC 32)... Solicitor-Client Privilege Is A General Principle of Substantive Law: [10] The Ontario Court of Appeal has recently followed Maranda, and reaffirmed the importance of solicitor-client privilege in reportsprepared in anticipation of litigation in R. v.

Bruce Power Inc.(2009), 245 C.C.C. (3d) 315, 2009 ONCA 573, at para. 43, whereArmstrong, J. A. held: The Supreme Court of Canada has made it abundantly clear that solicitor-client privilege is fundamental to the administration of justicein Canada. It is no longer simply an evidentiary rule and has become a general principle of substantive law: see Maranda v. Richer,2003 SCC 67 , [2003] 3 S.C.R. 193. The Exception of the Innocence At Stake Test: [11] The Supreme Court of Canada held in R. v.

McClure, 2001 SCC 14 , [2001] 1 S.C.R. 445 at paragraphs 46 to 47 thatsolicitor-client privilege is a principle of fundamental importance to the administration of justice as a whole. However, this privilege isnot absolute, and may be set aside if the accused meets the innocence at stake test. [12] This is a stringent two-part test. The privilege is only infringed where core issues to the guilt of the accused are involved and thereis a genuine risk of wrongful conviction.

Before the innocence at stake test is to be considered by the court, the accused must establishthat the information he is seeking in the solicitor-client file is not available from any other source and that he is unable to raise areasonable doubt as to his guilt in any other way. At this stage, the court must decide whether to review the evidence, asking itself

(McClure, para.52), “Is there some evidentiary basis for the claim that a solicitor-client communication exists that could raise areasonable doubt about the guilt of the accused?” If the court is satisified that such an evidentiary basis exists, then it must examine therecord and ask (McClure, para. 57), “Is there something in the solicitor-client communication that is likely to raise a reasonable doubtabout the accused's guilt?” The Supreme Court of Canada added that, in most cases, this second question means that, unless the solicitor-client communication goes directly to one of the elements of the offence, it will not be sufficient to meet this requirement (para.58).

If thesecond stage of the test is met, then the court should only order production of the portion of the solicitor-client file that is necessary toraise the defence claimed. Inspection of Each Document by the Court: [13] Both the moving and the responding parties to this motion agree that while solicitor-client privilege is a class privilege, it can onlybe claimed document by document, based on the test set out in Solosky v.

The Queen, (SCC), [1980] 1 S.C.R. 821, at 837: As Justice Addy notes, privilege can only be claimed document by document, with each document being required to meet the criteria forthe privilege – (i( a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which isintended to be confidential by the parties. To make the decision as to whether the privilege attaches, the letters must be read by thejudge, which requires, at a minimum, that the documents be under the jurisdiction of a court.

Finally, the privilege is aimed at improperuse or disclosure, and not at merely opening. Work Product Privilege: [14] In R. v. Brennan Paving and Construction Ltd. (ON CA), [1998] O.J. No. 4855, in a case involving a prosecutionby the Ministry of Labour, the Ontario Court of Appeal considered whether the Crown had failed in its obligation to disclose twodocuments, being a

summary of the investigation evidence and Crown counsel's response to the legal advice being sought. In that case,the Ministry of Labour investigator responsible for the case, prepared a memorandum summarizing the evidence that he had gathered,following completion of his investigation. His purpose in doing so was to obtain a legal opinion from Crown counsel as to whethercharges should be laid, in accordance with MOL policy. [15] The Court of Appeal in Brennan found that the memorandum did not contain any additional facts or material inconsistencies, notalready disclosed. Thus, it held that the memorandum did not constitute the fruits of his investigation, but rather, was a

summary ofinformation that the accused already possessed.

The Court of Appeal held at para. 21 that as such, the memorandum was properlycharacterized as work product and that the Crown was not obligated to disclose it. [16] The Court of Appeal also held that the second memorandum, which was the legal response prepared by Ministry counsel, should nothave been ordered produced, although the Court of Appeal did not articulate why, simply stating at para. 23, “There was no basis in factor law warranting the production of this document.” [17] Since work product privilege is not a class privilege, it may only be protected on a case-by-case basis, and is subject to thetraditional Wigmore test (see: McClure, para. 29): (1)The communications must originate in a confidence that they will not be disclosed. (2)This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. (3)The relation must be one which in the opinion of the community ought to be seduously fostered. (4)The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained forthe correct disposal of litigation.

Ruling of this Court After Inspection of Documents: [ 18 ] Based on the oral and written submissions made at this motion by the moving party, I determined that it was necessary to inspect the documents at issue, which were provided to me by Ms. Loosemore in a sealed envelope. [ 19 ] I have now had the opportunity to review the eleven pages of materials provided to me. Based on my review of them and the relevant case law, I find as follows: •Pages 1-3 are protected by work product privilege, and fall very squarely within Brennan , because they were written by the MOL investigator to provide a brief

summary of the investigation for the purpose of requesting a meeting with Crown counsel in order to receive legal advice, in an email dated November 20, 2008. These pages meet the Wigmore test. Furthermore, I rely on paragraph 8 of the Affidavit of Jeffrey Lomer, sworn April 4, 2011, that the material in question does not contain any material inconsistencies or additional facts not already disclosed in the case brief.

I decline to order their production. •Pages 4-7 are protected by solicitor-client privilege, since they the investigator's own handwritten notes and questions, and were written by him in anticipation of his meeting with Crown counsel for the purpose of obtaining legal advice.

They do not meet the innocence at stake test, nor has the investigator waived his solicitor-client privilege, and I decline to order their production. •Pages 8-11 are protected by solicitor-client privilege, since they contain an email from the investigator to the Crown counsel, dated December 10, 2008, requesting a telephone call for the purpose of obtaining legal advice regarding a document that has been produced (Affidavit of Jeffrey Lomer, supra , para. 8) and originated with one of the defendants.

Again, these pages do not meet the innocence at stake test, nor has the investigator waived his solicitor-client privilege and I decline to order their production. ORDER: [ 20 ] For the reasons outlined above, the motion for production of documents is hereby dismissed. Dated at Toronto this 19 th day of April, 2011. ________________________ Mary Ross Hendriks, J.P.