VIRGIL THOMSON v. KEVIN MILLER, 2023 SKKB 96

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 96 Date: 2023 05 05 Docket: KBG-RG-02801-2022 Judicial Centre : Regina BETWEEN: VIRGIL THOMSON AND KEVIN MILLER APPLICANTS - and - NATHAN XIAO-PHILLIPS RESPONDENT Counsel: Neil W. McPhee for the applicants Merrilee D. Rasmussen, K.C. for the respondent FIAT DAWSON J.

MAY 5, 2023 [ 1 ] The applicants, Virgil Thomson and Kevin Miller, apply to quash the subpoena duces tecums issued by this Court on October 3, 2022, requiring each of them attend to the Law Society of Saskatchewan [LSS] hearing and bring with them numerous documents referred to in the subpoenas. [ 2 ] The applicants brought this application by originating motion and assert that the subpoenas should be quashed on the following grounds: …on the basis of irrelevancy, abuse of process, privilege, and/or on the basis that it is a fishing expedition.

In the alternative, the Applicants assert that the documentation requested in the subpoena duces tecum be narrowed with leave to the applicants to file further submissions respecting the privileged nature of any such documentation. [ 3 ] The applicants’ grounds for making the application are that the subpoenas are oppressive, an abuse of process, seek irrelevant information, demand privileged information and that the subpoena duces tecums amount to nothing more than a fishing expedition by the respondent, Nathan Xiao-Phillips. BACKGROUND [ 4 ] Some background is necessary to understand the application. Mr.

Xiao-Phillips is facing the following charges pursuant to The Legal Profession Act, 1990 , SS 1990-91, c L-10.1 [ LPA ]: That he is guilty of conduct unbecoming a lawyer in that he:

1. Did intentionally, recklessly, with wilful blindness or through gross negligence fail to provide a quality service that was competent by acting or continuing to act for the Cega-Kin Nakoda Oyate Tribunal in relation to a band election appeal when he was not properly retained by that tribunal; and 2.

Did intentionally, recklessly, with wilful blindness or through gross negligence fail to provide a quality of service that was competent by advising, or failing to advise his purported client the Cega-Kin Nakoda Oyate Tribunal vis-a-vis their ability to transact business without a proper quorum. [ 5 ] The LSS charges against Mr. Xiao-Phillips arise out of a dispute involving the 2018 election of the Chief and Council for Carry the Kettle First Nation. One of the applicants, Mr. Thomson, acted for Carry the Kettle First Nation (the Council) as well as the Chief and Council in their personal capacities.

An election was held on the First Nation. Mr. Miller, the other applicant here, acted for two persons who appealed the results of that election. An appeal Tribunal, the Cega Kin Nakoda Oyate Tribunal [C-KNO Tribunal] was appointed by the Chief and Council for Carry the Kettle First Nation to hear that appeal. The appeal was heard and the C- KNO Tribunal dismissed the appeal. Mr. Miller’s clients then brought an application to the Court of Queen’s Bench appealing the C- KNO Tribunal’s decision. On November 23, 2018, this Court made a decision and remitted the matter back to the C-KNO Tribunal with directions.

After this November 23, 2018 court decision, Mr. Xiao-Phillips purported to represent the C-KNO Tribunal in the litigation that ensued thereafter. [ 6 ] In March/April 2019, Mr. Thomson made a complaint to the LSS against Mr. Xiao-Phillips in relation to Mr. Xiao-Phillips’ representation of the C-KNO Tribunal. It is Mr. Xiao-Phillips’ representation of the C-KNO Tribunal that is the subject of the LSS discipline hearing and the charges referred to above. [ 7 ] On October 3, 2022 Mr. Xiao-Phillips obtained subpoena duces tecums from this Court for Mr. Thomson and Mr. Miller.

The subpoena duces tecum issued October 3, 2022 for Mr. Thomson commands Mr. Thomson to appear at the LSS disciplinary hearing and bring the following documents and items, which cover a time period of some four (4) years and four (4) months: 1. Notes, memoranda, records, or similar documents, whether in written or electronic form, in your possession, custody, or control, that record or relate to discussions in the time period December 18, 2017 to April 7, 2022 , between Al Hubbs, Raquel Pasap, Matthew Spencer, James Kennedy, or Tanis Cote-Lartey, and one or more of the following persons:

a) Virgil Thomson,

b) Kevin Miller;

c) Al Hubbs,

d) Raquel Pasap,

e) Matthew Spencer,

f) James Kennedy,

g) Tanis Cote-Lartey,

h) Brady O’Watch,

i) Morris Pasap,

j) Shawn Spencer,

k) Scott Eashappie,

l) Conrad Medicine Rope,

m) Orleen Dawn Saulteaux, 2. All communications, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and other similar communications, dated, sent or received in the time period December 18, 2017 to April 7, 2022, in your possession, custody, or control, between any two or more of the following persons, whether as a designated recipient, or as an undesignated recipient such as CC or BCC:

a) Al Hubbs,

b) Raquel Pasap,

c) Matthew Spencer,

d) James Kennedy,

e) Tanis Cote-Lartey,

f) Brady O’Watch,

g) Morris Pasap,

h) Shawn Spencer,

i) Scott Eashappie,

j) Conrad Medicine Rope,

k) Orleen Dawn Saulteaux,

l) Kevin Miller, 3. All communications, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and other similar communications, dated, sent or received in the time period December 18, 2017 to April 7, 2022, in your possession, custody, or control, between you and one or more of the following persons, whether as a designated recipient, or as an undesignated recipient such as CC or BCC:

a) Al Hubbs,

b) Raquel Pasap,

c) Matthew Spencer,

d) James Kennedy,

e) Tanis Cote-Lartey,

f) Kevin Miller, 4. All communications between any persons at any point in time, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and other similar communications, in your possession, custody, or control, that relate or refer to Nathan Xiao-Phillips (formerly Nathan Phillips). 5.

Any document in your possession, custody, or control, that reflects or records a waiver of conflict of interest in relation to your representation of Carry The Kettle First Nation, and Brady O’Watch, Morris Pasap, Shawn Spencer, Scott Eashappie, Conrad Medicine Rope, or Orleen Dawn Saulteaux. (Emphasis added) [ 8 ] The subpoena duces tecum issued October 3, 2022 for Mr. Miller commands Mr. Miller to appear and bring the following documents and items, which cover a time period of some four (4) years and four (4) months: 1.

All communications, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and other similar communications, dated, sent or received in the time period December 18, 2017 to April 7, 2022 , in your possession, custody, or control, between any two or more of the following persons, whether as a designated recipient, or as an undesignated recipient such as CC or BCC:

a) Al Hubbs,

b) Raquel Pasap,

c) Matthew Spencer,

d) James Kennedy,

e) Tanis Cote-Lartey,

f) Brady O’Watch,

g) Morris Pasap,

h) Shawn Spencer,

i) Scott Eashappie,

j) Conrad Medicine Rope

k) Orleen Dawn Saulteaux,

l) Virgil Thomson, 2. All communications, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and other

similar communications, dated, sent or received in the time period December 18, 2017 to April 7, 2022, in your possession, custody, orcontrol, between you and one or more of the following persons, whether as a designated recipient, or as an undesignated recipient such asCC or BCC:

a) Al Hubbs,

b) Raquel Pasap,

c) Matthew Spencer,

d) James Kennedy,

e) Tanis Cote-Lartey,

f) Virgil Thomson, 3. All communications between any persons at any point in time, including but not limited to letters, emails, text messages, instantmessages, Facebook messages, and other similar communications, in your possession, custody, or control, that relate or refer to NathanXiao-Phillips (formerly Nathan Phillips). (Emphasis added) [9] As is commonly known, a subpoena duces tecum only commands the witnesses, Mr. Thomson and Mr. Miller,to appear at the LSS disciplinary hearing with the documents. It does not entitle Mr.

Xiao-Phillips to production or discovery of thedocuments sought prior to the witness taking the witness stand. It does not mean that the documents must be disclosed to Mr. Xiao-Phillips prior to the hearing and does not mean that the documents are admissible in evidence at the LSS discipline hearing. [10] Subsequent to the issuance of the subpoenas, Mr. Xiao-Phillips brought an “O’Connor application” [R vO’Connor, (SCC), [1995] 4 SCR 411 [O’Connor]] dated October 27, 2022, seeking an order from the LSS disciplinaryhearing panel that Mr. Thomson and Mr.

Miller produce the records and documents contained in the subpoenas to Mr. Xiao-Phillips. An“O’Connor application” is the nomenclature used to refer to the process set out by the Supreme Court of Canada case of O’Connor.O’Connor sets out the process to be undertaken when a party seeks production of documents in the hands of a third party. Mr. Xiao-Phillips’ application asks that the LSS disciplinary hearing panel order the production of records in the hands of Mr.

Thomson and Mr.Miller to the LSS disciplinary hearing panel so that the LSS disciplinary hearing panel may determine if the documents should beproduced to Mr. Xiao-Phillips prior to the hearing of the complaint. [11] The Supreme Court of Canada in the O’Connor case outlined the processes and considerations involved when aparty seeks the production of records in the hands of a third party. It is this process that will determine whether the documents are or arenot to be produced to the LSS disciplinary hearing panel, and if produced to the LSS disciplinary hearing panel, whether the documentsare disclosed to Mr.

Xiao-Phillips in advance of the LSS disciplinary hearing. [12] The LSS disciplinary hearing panel convened the discipline hearing involving the charge against Mr. Xiao-Phillips. However, that hearing was adjourned when Mr. Thomson and Mr. Miller advised that they were bringing an application to theCourt of King’s Bench to quash the subpoenas issued by this Court. [13] It is the LSS disciplinary hearing panel, not this Court, that will hear and decide Mr.

Xiao-Phillips’ O’Connorapplication and decide if the documents should be produced firstly to the LSS disciplinary hearing panel and then, potentially, to Mr.Xiao-Phillips. [14] While it is only the application to quash the subpoena duces tecums that is before me, it is helpful in consideringthis application to quash the subpoenas to review the O’Connor law, to properly orient the application to quash the subpoenas.

a) O’CONNOR PROCESS [15] In a third-party record application (an O’Connor application), the Supreme Court has developed a two-part test.In the first stage of the test, the applicant (Mr. Xiao-Phillips) must demonstrate that the information sought is likely relevant to an issueat trial (the LSS disciplinary hearing) or competence to testify. If the applicant satisfies this first stage, the LSS disciplinary hearingpanel considers a limited production of the record for the LSS disciplinary hearing panel alone to review. The LSS disciplinary hearingpanel then moves to the second stage of the analysis.

Within the second stage, the issue is whether production should be made to theapplicant, and is contingent upon the LSS disciplinary hearing panel exercising its discretion weighing the “salutary vs. deleterious”effects of production and considering whether a non-production order would constitute a reasonable limit on the availability of Mr. Xiao-Phillips to make full answer and defence. [16] In 2009, with the release of R v McNeil, 2009 SCC 3, [2009] 1 SCR 66 [McNeil], the Supreme Court of Canadarevisited the procedural requirements for applications for third-party records under the modernized O’Connor regime.

In McNeil, thecourt more specifically set out the process for such applications. The court identified that once the existence of a third-party record isconfirmed, the process involves the following: 1. The applicant (here Mr. Xiao-Phillips) obtains a subpoena duces tecum and serves it upon the third party record holder. Theapplicant must identify the person being in a position to give material evidence in relation to the records and identify what the person hasin their possession and control which may be brought under the authority of the subpoena.

Failure to satisfy either of these informationalrequirements may result in the subpoena being quashed within the context of the O’Connor application. The third party record holder,after receiving the subpoena duces tecum, must answer the subpoena by attending the hearing as directed, with the subject records.Objections to the subpoena may be made by any third party served, whether that is the record holder (here Mr. Thomson and Mr. Miller)

or any individual who asserts a privacy interest in the records sought. Individuals, including persons other than the record holder, may assert privacy interests where such a record impacts the individual’s privacy. 2. The applicant (Mr. Xiao-Phillips) must bring the O’Connor application before the LSS disciplinary hearing panel and such application must be accompanied by an affidavit setting out the likely relevance of the records sought to an issue at the hearing.

The application and accompanying affidavit must be served upon the party prosecuting the complaint (here the LSS conduct investigation committee), the record holders (Mr. Thomson and Mr. Miller), and anyone having a privacy interest in the record. The applicant is required to identify and serve persons who appear to have a potential privacy interest in the records. The focus at this first stage is for the applicant to demonstrate, by way of affidavit or other evidence, the “likely relevance” of the documents sought.

The affidavit in support of the application exists to allow the judicial gatekeeper (here the LSS disciplinary hearing panel) to prevent an applicant from embarking on applications based upon speculation or fishing expeditions that consume valuable judicial resources. The court in McNeil pointed out that likely relevance is a significant burden and should not be assumed, as the records are in the hands of a third party, and not the party prosecuting the complaint (here the LSS conduct investigation committee). While the onus borne by the party seeking production (here Mr.

Xiao-Phillips) is significant, it is not onerous, but relevance cannot be determined in a vacuum nor based on some speculative assertion of how the evidence might be of assistance. There must be a foundation for the assertion of relevance made in the affidavit evidence filed in support of the application. The question of likely relevance must be demonstrated in some real way and speculation as grounds for obtaining third party records, in the hope that they might yield a possible defence, is not enough to demonstrate likely relevance.

Indeed, the O’Connor decision itself is the best source of the principle that likely relevance, in the context of third party records, must be considered by way of some form of evidence satisfactory to the court having met the standard as expressed therein. Third party records are not presumptively relevant, and do not become relevant by simply suggesting that they relate to credibility “at large”.

If such records are to be likely relevant on the basis of relating to credibility, it must be credibility on a specific, material issue: McNeil ; O’Connor ; R v Matthews , 2013 SKQB 302 , 428 Sask R 155 [ Matthews ]. 3. The O’Connor application in this instance is brought before the LSS disciplinary hearing panel. If the production is opposed, either by the third-party record holder (here Mr. Thomson or Mr. Miller) or a party asserting a privacy interest, then the LSS disciplinary hearing panel must consider these issues. 4 .

If a claim of privilege is advanced by the third-party record holder or another person asserting with a privacy interest, then the LSS disciplinary hearing panel must determine the issue of privilege . A finding of privilege will bar production, unless the applicant’s innocence is at stake, as defined in O’Connor and McNeil . Issues of privilege should immediately be addressed and resolved at the outset of an O’Connor application. There are a number of “heads” of privilege, including solicitor-client privilege and litigation privilege, among others.

The issue of privilege must be determined without revealing the information in the record itself. If the court (here the LSS disciplinary hearing panel) finds the documents are subject to privilege, then the court (here the LSS disciplinary hearing panel) does not move to the next stage and does not have the documents produced to the court (here the LSS disciplinary hearing panel) for inspection. 5. If privilege is not in issue, the LSS disciplinary hearing panel would move to the two-step process to consider: a. Whether the record is likely relevant to the proceeding against Mr.

Xiao-Phillips: if the particular record is found to be likely relevant, then the LSS disciplinary hearing panel would order production of the documents to the LSS disciplinary hearing panel for inspection; b. The LSS disciplinary hearing panel would then inspect only those documents ordered by the LSS disciplinary hearing panel to be produced: upon review, the LSS disciplinary hearing panel will determine whether, and to what extent, production would be ordered for Mr.

Xiao-Phillips. [ 17 ] As stated, an understanding of the processes and tests involved in an O’Connor application help to orient the application before me to quash the subpoenas.

b) FURTHER BACKGROUND [ 18 ] As stated earlier, Mr. Thomson and Mr. Miller properly responded to the subpoena duces tecums and attended to the LSS disciplinary hearing. As stated, prior to the LSS disciplinary hearing panel considering the O’Connor third-party record application, Mr. Thomson and Mr.

Miller advised the LSS disciplinary hearing panel that they intended to bring an application before the Court of King’s Bench to quash the subpoenas. [ 19 ] As acknowledged by all the parties, service of a subpoena duces tecum does not entitle the party that served the subpoena to discovery of the documents in advance of the hearing. It simply requires the subpoenaed party to attend the hearing with the documents. That is no doubt why Mr.

Xiao-Phillips, after having issued the subpoenas duces tecums , brought the O’Connor application, as he actually seeks production of the documents to himself in advance of the LSS disciplinary hearing. [ 20 ] As stated, the application before me to quash the subpoenas is not the application to consider the O’Connor criteria. That consideration is solely within the jurisdiction of the LSS disciplinary hearing panel. If I were to deny Mr. Thomson’s and Mr. Miller’s application to quash the subpoena duces tecums and if the LSS fails to limit the application on the basis of privilege or privacy, Mr.

Xiao-Phillips will still be required to satisfy the LSS disciplinary hearing panel at this first stage of the O’Connor process, that the documents or some of them are likely relevant. If so satisfied, the LSS disciplinary hearing panel would review the relevant documents and go on to consider ordering a limited production of the record to the LSS disciplinary hearing panel. That is, the records would be produced for the LSS disciplinary hearing panel alone to review. This is completed before the LSS disciplinary hearing panel moves to the second stage of the analysis.

After a review of the documents, the LSS disciplinary hearing panel would decide whether production of any document(

s) should be made to Mr. Xiao-Phillips and at this stage, is contingent upon the LSS disciplinary hearing panel exercising its discretion as outlined in O’Connor and McNeil . [ 21 ] Mr. Xiao-Phillips’ application and affidavit filed in support of his O’Connor application, filed as an exhibit on this application, do not clearly identify any third party who might have a privacy interest, such as the clients of Mr. Thomson and Mr. Miller (who likely have a privacy interest and/or who may assert privilege) nor does it clearly identify if those persons were served with

the application. Whether the failure to identify and serve persons with privacy interests is fatal to the O’Connor application and/orwhether privilege is asserted by the record holders and/or by any parties with potential privacy interests are issues for the LSSdisciplinary hearing panel to determine in due course. [22] Having identified that I am not ruling on the O’Connor application, nevertheless the application before me mustbe considered having regard to the process within which it has been brought (an O’Connor application).

As a subpoena duces tecum isthe required process to be used in an O’Connor application, it cannot be said the use of such subpoena for the purposes of production ofthird party records is an improper use of the subpoena duces tecum. MR. XIAO-PHILLIPS’ PRELIMINARY ARGUMENTS [23] The respondent, Mr. Xiao-Phillips, has made several preliminary arguments in relation to this application toquash the subpoenas.

Firstly, he asserts that the court does not have jurisdiction to hear this matter because the applicants improperlycommenced the application to quash the subpoenas by originating application. [24] The LPA confers the right to a member of the LSS to have a subpoena issued by the court to require theattendance of a witness at the hearing of the complaint before a LSS disciplinary hearing panel.

I am satisfied that in the circumstancesthe application to quash the subpoenas commenced by originating application is an appropriate commencing process based on Dalgleishv Basu, (SK KB), [1975] 2 WWR 326 (Sask QB) [Dalgleish] and Law Society of Saskatchewan v Abrametz,2016 SKQB 134 [Abrametz].

As well, given the nature of the application and the issues here, even if I am wrong, I would exercise mydiscretion to apply the rules that relate to an action that should be commenced by an alternative process to be commenced by anoriginating application based on Metis Nation – Saskatchewan and Metis Nation – Saskatchewan Secretariat Inc. v Saskatchewan(Environment), 2022 SKQB 23. I am satisfied that Mr. Xiao-Phillips was given proper and sufficient notice to address the issues. Therespondent’s objection to the applicants proceeding by originating application is dismissed. [25] Secondly, Mr.

Xiao-Phillips argues that the LSS should have been included as a party, based on thejurisprudence contained in Cupola Investments Inc. v Zakreski, 2021 SKCA 86 [Cupola]. Mr. Xiao-Phillips cites that case as authorityfor the proposition that the LSS is a necessary party. However, a close reading of that case identifies that Cupola is concerned with thepermissive joinder of parties and who is a proper party, not who is a necessary party. A proper party is a person who may be subject tothe court’s determination, but whose presence is not absolutely required for a court to decide the issues.

A proper party may bedistinguished from a necessary party. A necessary party is a person who would be bound by the result of the action and is necessarybecause the question before the court cannot be effectually and completely settled unless it is a party. The respondent argues that theLSS is a necessary party, rather than a proper party. I disagree. The LSS is a proper party, but they are not a necessary party. The LSSpresence is not absolutely required for this Court to decide the issues in the application to quash the subpoenas. The respondent’sobjection in this respect is dismissed.

ANALYSIS [26] The substantive issue to be dealt with is whether the subpoenas duces tecums should be quashed. [27] I repeat here for clarity that the subpoena duces tecum for Mr. Thomson requires him to produce the followingdocuments and items: 1. Notes, memoranda, records, or similar documents, whether in written or electronic form, in your possession, custody, or control,that record or relate to discussions in the time period December 18, 2017 to April 7, 2022, between Al Hubbs, Raquel Pasap, MatthewSpencer, James Kennedy, or Tanis Cote-Lartey, and one or more of the following persons:

a) Virgil Thomson,

b) Kevin Miller;

c) Al Hubbs,

d) Raquel Pasap,

e) Matthew Spencer,

f) James Kennedy,

g) Tanis Cote-Lartey,

h) Brady O’Watch,

i) Morris Pasap,

j) Shawn Spencer,

k) Scott Eashappie,

l) Conrad Medicine Rope,

m) Orleen Dawn Saulteaux,

2. All communications, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and other similar communications, dated, sent or received in the time period December 18, 2017 to April 7, 2022, in your possession, custody, or control, between any two or more of the following persons, whether as a designated recipient, or as an undesignated recipient such as CC or BCC:

a) Al Hubbs,

b) Raquel Pasap,

c) Matthew Spencer,

d) James Kennedy,

e) Tanis Cote-Lartey,

f) Brady O’Watch,

g) Morris Pasap,

h) Shawn Spencer,

i) Scott Eashappie,

j) Conrad Medicine Rope,

k) Orleen Dawn Saulteaux,

l) Kevin Miller, 3. All communications, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and other similar communications, dated, sent or received in the time period December 18, 2017 to April 7, 2022, in your possession, custody, or control, between you and one or more of the following persons, whether as a designated recipient, or as an undesignated recipient such as CC or BCC:

a) Al Hubbs,

b) Raquel Pasap,

c) Matthew Spencer,

d) James Kennedy,

e) Tanis Cote-Lartey,

f) Kevin Miller, 4. All communications between any persons at any point in time, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and other similar communications, in your possession, custody, or control, that relate or refer to Nathan Xiao-Phillips (formerly Nathan Phillips). 5.

Any document in your possession, custody, or control, that reflects or records a waiver of conflict of interest in relation to your representation of Carry The Kettle First Nation, and Brady O’Watch, Morris Pasap, Shawn Spencer, Scott Eashappie, Conrad Medicine Rope, or Orleen Dawn Saulteaux. [ 28 ] Mr. Thomson acted for Carry the Kettle First Nation, as well as the Chief and Council in their personal capacities. Mr.

Thomson’s affidavit attests he took instructions from Morris Pasap, Shawn Spencer, Scott Eashappie, Brady O’Watch, Kurt Adams, Conrad Medicine Rope and Orleen Dawn Saulteaux. [ 29 ] As stated earlier, the subpoena duces tecum for Mr. Miller requires him to produce the following documents and items: 1.

All communications, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and other similar communications, dated, sent or received in the time period December 18, 2017 to April 7, 2022, in your possession, custody, or control, between any two or more of the following persons, whether as a designated recipient, or as an undesignated recipient such as CC or BCC:

a) Al Hubbs,

b) Raquel Pasap,

c) Matthew Spencer,

d) James Kennedy,

e) Tanis Cote-Lartey,

f) Brady O’Watch,

g) Morris Pasap,

h) Shawn Spencer,

i) Scott Eashappie,

j) Conrad Medicine Rope

k) Orleen Dawn Saulteaux,

l) Virgil Thomson, 2. All communications, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and othersimilar communications, dated, sent or received in the time period December 18, 2017 to April 7, 2022, in your possession, custody, orcontrol, between you and one or more of the following persons, whether as a designated recipient, or as an undesignated recipient such asCC or BCC:

a) Al Hubbs,

b) Raquel Pasap,

c) Matthew Spencer,

d) James Kennedy,

e) Tanis Cote-Lartey,

f) Virgil Thomson, 3. All communications between any persons at any point in time, including but not limited to letters, emails, text messages, instantmessages, Facebook messages, and other similar communications, in your possession, custody, or control, that relate or refer to NathanXiao-Phillips (formerly Nathan Phillips). [30] Mr. Miller attested he acted and took instructions from Gray Bellegard and Mildred Hotomani. [31] Superior courts have the inherent power to control its own process.

The court has authority to set aside asubpoena where the purposes for which it has been issued are not being served or the court’s process is being subverted.

This has beenclearly articulated in many cases including in General Hospital Corporation v Newfoundland Association of Public Employees (1986), (NL SC), 194 APR 332 (Nfld SC), where Steele J. observed at para. 15: [15] … any party is entitled to a subpoena or a summons as of right but, if improperly issued [it] may be set aside; every court hasinherent power to prevent an abuse of the process, for example, where it is oppressive as to the number or nature of the documentsrequired or maybe the expense involved. … [32] The court has jurisdiction to set aside a subpoena where the witness cannot provide relevant evidence or whereits issuance is an abuse of process as articulated in Seagrove Capital Corp. v Leader Mining International Inc., 2000 SKQB 230, 193Sask R 273 [Seagrove]: [14] The Court has an inherent jurisdiction to set aside a writ of subpoena where it is satisfied a witness is unable to give relevantevidence or where its issue was an abuse of the Court's process.

Tribune Newspaper Co. v. Fort Frances Pulp & Paper Co. et al., (MB CA), [1932] 4 D.L.R. 179 (Man. C.A.); Re Regina and McConnell (1977), (SK CA), 35 C.C.C. (2d)435 (Sask. C.A.); Foley v. Gares (1989), (SK CA), 53 C.C.C. (3d) 82 (Sask. C.A.). Where a subpoena is challengedthe burden is on the person issuing the writ of subpoena to establish that the person subpoenaed "would probably have evidence materialto the issues raised": R v. Harris (1994), (ON CA), 93 C.C.C. (3d) 478 at 480 (Ont.

C.A.). [33] The court in Seagrove identified that once the subpoena is challenged, the burden is on the person issuing thesubpoena to establish the evidence sought is material. [34] More recently, in Carroll (Re), 2010 NLCA 53, 88 RFL (6th) 241, the Newfoundland Court of Appeal also setout the grounds for quashing a subpoena: [78] …

4. The grounds on which a subpoena to a non-party may be quashed include: (

a) the information sought is not relevant to the live issues in dispute; (

b) the subpoena was irregularly issued; (

c) the information is privileged from production or is prohibited by statute; (

d) the subpoena was not issued in good faith for the purpose of obtaining relevant evidence but for an ulterior or improper purpose; (

e) the matter (such as an interlocutory application in a proceeding) to which the subpoena relates is frivolous or vexatious; (

f) compliance would be oppressive as to the number, nature and breadth of the documents required or would work anunnecessary hardship, as where the documents may not be easily or readily retrievable and the expense does not justify theirproduction considering their importance to the case, their potential availability from other sources and the importance of theprivacy interests at stake; (

g) its issuance is otherwise an abuse of process; (Emphasis added) [35] This Court, in Abrametz, discussed the proper process that should be used when considering whether to quashsubpoenas in matters concerning a discipline proceeding before the LSS: [38] The correct procedure for attacking a subpoena is discussed by the Saskatchewan Court of Appeal in Wal-Mart Canada Corp. vSaskatchewan (Labour Relations Board), 2004 SKCA 154, 257 Sask R 12: [34] This is not to say that any court or tribunal is entitled to issue or to enforce subpoenas compelling production of irrelevant orprivileged documents.

If that is done, the injured party has the same recourse as was resorted to by the employer in this case: to move tohave the tribunal quash the subpoena or to rule on the issues of relevance or privilege in respect of the documents which it does notbelieve it should be compelled to produce. [36] Further, in Wal-Mart Canada Corp. v United Food and Commercial Workers, Local 1400, 2004 SKCA 154,257 Sask R 12 [Wal-Mart], the Saskatchewan Court of Appeal also said: [41] As to the suggestion that the documents demanded were so broadly and vaguely described that they amounted to a fishingexpedition, the law in this respect was fairly summarized by Bayda J. (as he then was) in Dalgleish and Basu [(1974), (SK KB), 51 DLR (3d) 309 (Sask QB)] after a careful analysis of the relevant authorities.

Although the judgment was in respect of asubpoena, the principles apply here. He found the issue to be determined was whether the specification was so broad and indefinite thatthe demand is oppressive and exceeds the demanding party’s necessities.

In determining this question, the tribunal must take intoaccount (1) whether the witness is informed with sufficient particularity of the documents that are needed for the inquiry; (2) whetherthe party issuing the subpoena had an opportunity to examine the documents beforehand; if not, greater latitude must be given; (3)whether the witness is or is not a party to the proceedings so that she has some familiarity with the documents; and (4) what the scope ofthe proceedings is. … [47] Upon application of the tests set out in Dalgleish, we are satisfied that the impugned orders were within the jurisdiction of theBoard to make.

This case is not like Dalgleish where the subpoena in question demanded essentially all documents in the possession ofthe College of Physicians and Surgeons relating to Dr. Basu, who was the subject of disciplinary proceedings before the DisciplineCommittee of the College.

The subpoena there was quashed insofar as it required production of documents, but with leave to reissue witha proper description. [37] In Dalgleish, a case also dealing with a professional disciplinary process, the court said the following about asubpoena duces tecum that was overly broad and went well beyond the scope of the disciplinary process inquiry: [15] I turn now to the subpoena before me in this application. The description contained in the subpoena of the documents required, inmy view, is objectionable for two reasons.

The description, in the first place, is so broad as to lead me to conclude that the subpoena isreally an attempt to compel the College of Physicians and Surgeons (in truth, the prosecutor in the disciplinary proceedings and in thatsense a party to the proceedings) to make discovery of its documents. … … [19] The second reason is closely related to the first. The breadth of the subpoena goes far beyond the scope of the inquiry. Thesubpoena demands production of documents relating to every matter which ever existed between Dr.

Basu on the one hand and thehospital and its past and present agents, employees, patients and medical practitioners on the other hand. In addition, the subpoenademands production of documents passing to and from the witness and Dr. Thomson which are in any way connected with Dr. Basu. Anexamination of the notice of hearing establishes clearly that only certain specific matters are being investigated and not every matterwhich ever existed between Dr. Basu and the hospital and its past and present agents, employees, patients and medical practitioners. Inshort Dr.

Basu is requiring production of certain documents which under no conceivable circumstances could constitute evidence in theproceeding now pending. The demand, for that reason, is oppressive and exceeds the “demandant’s necessities”. [20] It is true that the second and third factors discussed above favour Dr. Basu’s position. But, the assistance which she is able toderive from a favourable application of these two factors is simply not sufficient to overcome the objectionable qualities of the

description. [21] In the result, there will be an order setting aside that part of the subpoena which commands Dr. Dalgleish to produce thedocuments described in the subpoena. The subpoena remains valid to the extent that it requires Dr. Dalgleish to attend at the hearing andto give evidence on behalf of Dr. Basu if so required. Nothing contained in this disposition shall prejudice the right of Dr. Basu to causeto be issued another subpoena duces tecum containing a proper description of the documents sought to be produced. (Emphasis in original) [38] It is with these principles in mind that I must consider the objections to the subpoena duces tecums.

a) RELEVANCY [39] The applicants here assert that, even within the O’Connor application, the documents requested by therespondent, as identified in the subpoenas, are not relevant to the issue of the complaint charges against Mr. Xiao-Phillips and that this isnothing more than a fishing expedition. [40] The case law identifies that on an application to quash the subpoena duces tecum, the documents sought must berelevant to an issue at the hearing.

The question is the degree of connection that must exist between the information sought pursuant tothe subpoena and the issues in the proceeding. [41] The approach taken in Canada Metal Co. v Heap (1975), (ON CA), 54 DLR (3d) 641 (Ont CA) [Canada Metal]; Can West Media Works Inc. v Canada (Attorney General), 2007 ONCA 567, 48 CPC (6th) 281 [Can West]; andConsortium Developments (Clearwater) Ltd. v Sarnia (City), (SCC), [1998] 3 SCR 3 [Consortium Developments] isthat the issuer must show the connection between the evidence sought and the issues in the case.

It is then up to the person challengingthe subpoena to show that it was nevertheless improperly issued. This approach was also adopted in Laboratoires Servier v Apotex Inc., 2008 FC 321 at para 22, 66 CPR (4th) 406per Snider J.; Dunphy v Peel Living, [2009] OJ No 1792 (QL) (Ont Sup Ct) at para 15, perDaley J.; and Seagrove at para 14, per Maurice J.; General Hospital Corporation v Newfoundland Association of Public Employees(1986), (NL SC), 63 Nfld & PEIR 332 (Nfld SC); Canada Metal and Consortium Developments. [42] The LSS allegations here against Mr.

Xiao-Phillips include: 1) that he did not provide a quality of service thatwas competent by acting or continuing to act for the C-KNO Tribunal in relation to the band election appeal when he was not properlyretained by C-KNO Tribunal; and 2) that he provided incompetent legal services by advising or failing to advise the C-KNO Tribunalvis-à-vis their ability to transact business without a proper quorum. The applicants argue that the subpoenas seek documentary evidenceunrelated to either of these issues and that sufficient materials are available to Mr.

Xiao-Phillips to properly present evidence and argueagainst the LSS allegations. Plainly put, the applicants submit that the sought documents are irrelevant. [43] Mr. Xiao-Phillips argues that the two witnesses should attend the LSS disciplinary hearing where the LSSdisciplinary hearing panel, fully informed of the issues in the case and the facts in dispute, can make an informed decision, underO’Connor, as opposed to a decision by this Court which, he argues, would be a decision in a vacuum.

The respondent argues that theLSS disciplinary hearing panel is more appropriately situated to make a finding on relevance. [44] Mr. Xiao-Phillips asserts, in argument, that the records sought from Mr. Thomson and Mr. Miller are “likelyrelevant” in addressing the allegations against him and are relevant to the credibility of Mr. Thomson and Mr. Miller, and indemonstrating that the actions of others (including Mr. Thomson and Mr. Miller) resulted in the dysfunctional operation of the C-KNOTribunal. [45] While Mr.

Xiao-Phillips makes the argument, he fails to provide any evidentiary foundation for the argument.The only paragraphs in the affidavit of Mr. Xiao-Phillips filed in response to the application to quash, which might identify why thedocuments sought might be relevant to an issue, are paras. 12 and 13 of his affidavit sworn December 9, 2022 which state: 12. As a result of the refusal of the Law Society, with the assistance of my counsel I exercised my statutory right pursuant tosubsection 39(1)(

a) of The Legal Profession Act, 1990, to serve a subpoena duces tecum upon each of Mr. Thomson and Mr. Miller. Thiswas done exclusively in good faith with the objective of obtaining documents relevant to the determination of the issues anticipated to beimplicated in the hearing of the Amended Formal Complaint and the credibility of witnesses to be tendered. 13. The complaint of Mr. Thomson made several serious allegations against me. The Law Society acted upon the allegations of Mr.Thomson by imposing an interim suspension without notice upon me.

The Law Society made no attempt to contact me before imposingthe interim suspension without notice. The interim suspension without notice that commenced in April, 2019, caused serious andirreparable damage to me personally and professionally. The hearing of the Amended Formal Complaint is my only opportunity todirectly respond to the allegations of Mr. Thomson and the Law Society. In serving the subpoena duces tecum upon each of Mr.Thomson and Mr. Miller, the only thing that I sought was a fair hearing of the allegations before a Hearing Committee of the LawSociety.

A fair hearing of those allegations is important to me: the Hearing Committee will decide whether I may continue to be alawyer. [46] Nothing in that evidence identifies how any of the documents sought are relevant to the issue of whether he wasretained or was negligent in his advice or lack thereof about the need for the C-KNO Tribunal to have a quorum. [47] The affidavit of Mr. Xiao-Phillips, sworn October 27, 2022, filed in support of his O’Connor application, is a 73paragraph affidavit. In that affidavit Mr.

Xiao-Phillips attests to his understanding of the nature of the LSS complaint against him, hisunderstanding of the issues relating to the complaint, references discussions between Tim Huber of the LSS and Mr. Xiao-Phillips, andDonna Sigmeth of the LSS and various other persons involved in the investigation, including inter alia, Mr. Thomson and Mr. Miller. Aswell he references court decisions and evidence taken in various of the court decisions in the election appeal case. However, the only

evidence in the affidavit identifying how the documents sought from Mr. Thomson and Mr. Miller are relevant to the issues involving the complaint against Mr. Xiao-Phillips is contained in paras. 71 and 72 of Mr. Xiao-Phillips’ affidavit which states: 71. The subsection of the Election Act referred to is subsection 12(7)(i), not subsection 10(7)(i). As a result of the reproduction of this error in the confidential version of the written notice of interim suspension, I inferred that Tim Huber and the Law Society may not have obtained a copy of the Election Act or received same from Mr. Thomson or Mr.

Miller prior to imposing the interim suspension. That inference was determined to be correct when on April 8, 2019, Tim Huber informed me that he still did not have a copy of the Election Act as of that date and that if he had a copy he would have included it in the disclosure that he had provided to me. As a result, on April 8, 2019, I provided a copy of the Election Act to Tim Huber. 72. However, as noted above it is my understanding that the CIC now disputes this fact. As a result, it is necessary to obtain all communications with Mr. Thomson/Mr.

Miller to, among other things, determine the first occasion that they provided a copy of the Election Act to Tim Huber or anyone else at the Law Society. [ 48 ] The applicants again assert that the issue to be determined by the LSS discipline hearing panel are whether Mr. Xiao-Phillips was retained by the C-KNO Tribunal and whether he provided competent legal advice regarding the C-KNO Tribunal’s need for a quorum. The applicants suggest that whether Mr. Xiao-Phillips was properly retained is determinable solely upon the material that Mr.

Xiao-Phillips has in his possession, as any lawyer-client relationship is established directly between the lawyer and client and cannot be imposed nor severed by a third party not privy to the relationship. The applicants argue that the issue before the LSS hearing panel includes whether Mr. Xiao-Phillips had a reasonable basis for believing that the C-KNO Tribunal provided instructions for him to act and the records that Mr. Xiao-Phillips seeks to discover are immaterial to whether at the time of his actions he had a reasonable basis to believe he had a valid retainer. In respect of the allegations that Mr.

Xiao-Phillips provided incompetent advice to the C-KNO Tribunal about whether they could transact business without a quorum, the applicants suggests that this is based on the nature and basis of the advice provided by Mr. Xiao-Phillips. The applicants argue that Mr. Xiao-Phillips is demanding discovery of unknown contents of unknown correspondence, retainers and discussions between Mr. Thomson, Mr. Miller and their clients that Mr. Xiao-Phillips was not privy to.

The applicants argue such that matters bear no logical relevance, nor likely relevance to issues of his retainer or the legal advice he purportedly provided (Applicants’ brief, paras. 13-16). [ 49 ] Mr. Xiao-Phillips argues, in his brief, that the formal complaint alleges that he was grossly negligent in providing legal advice to the C-KNO Tribunal and its members because of an assumption that under the Carry the Kettle Custom Election Act [ Election Act ], a majority of the C-KNO Tribunal members is a quorum. Mr.

Xiao-Phillips argues that assumption is without regard to the specific authority granted under the Election Act to the C-KNO Tribunal chair. Mr. Xiao-Phillips argues further that in the special circumstances of First Nation legislation and in the context of the decision of this Court requiring the C-KNO Tribunal to take certain steps within a defined timeframe, the assumption related to a quorum is questionable and the extended authority of the C- KNO Tribunal chair affects the nature of the legal advice that is appropriately provided (Respondent’s brief, paras. 9 and10). Mr.

Xiao- Phillips goes on to suggest that the records sought from Mr. Thomson and Mr. Miller are “likely relevant to these issues and therefore to the formal complaint…)(Respondent’s brief, para. 10). But, Mr. Xiao-Phillips does not identify or articulate how the applicants’ records or which of them would be likely relevant to this argument of law. Beyond that and importantly, he does not set this out, in any affidavit evidence, how they are relevant. He simply states in his argument on this application that the information is relevant. That is not sufficient to meet the test of relevancy. [ 50 ] Mr.

Xiao-Phillips goes on further to state in his brief that “In addition to credibility, the documents sought relate in part to demonstrating that the acts of others – including the four witnesses proposed by the CIC – resulted in the dysfunctional operation of the Carry the Kettle First Nation Tribunal.” (Respondent’s brief, para. 20). Again he argues this in written and oral argument, but does not relate how or in what manner this is relevant to whether he was retained or whether his advice vis-à-vis a quorum was inappropriate.

Again, he makes the argument in his brief, without any evidentiary basis or without identifying the materiality of any of the documents to the issues. [ 51 ] In order for the records sought by Mr. Xiao-Phillips to meet the relevance threshold, there must be a reasonable possibility that the information in the records is logically probative of whether Mr. Xiao-Phillips was retained and whether he provided competent advice to the C-KNO Tribunal.

The common theme in Canada Metal , Can West and Consortium Developments as to the test for the degree of connection that must exist between the information sought pursuant to the subpoena and the issues in the proceeding is “relevance” to the issues in dispute. In reality, when the focus is on relevance in relation to the issues in dispute, what is really being talked about is the concept of materiality. [ 52 ] Mr. Xiao-Phillips must demonstrate a probative nexus between his positions in the dispute on the LSS charges and the material being requested.

There must be a probative nexus between the information sought and the issue to be decided. Furthermore, whether production of a great number of documents is sought, as is the case here as Mr. Xiao-Phillips appears to seek the entire files of Mr. Thomson and Mr. Miller over a four year period, the probative nexus must be sufficiently strong as to warrant the time and expense of locating and producing these documents. [ 53 ] Mr. Xiao-Phillips does attest in his affidavit sworn October 27, 2022 that relevant to his defence of the LSS charges is the correspondence which identifies the first occasion that either Mr.

Thomson or Mr. Miller provided a copy of the Election Act to Mr. Huber or anyone else at the LSS (paras. 71 and 72). This is the only identification in the evidence of a document(

s) that could be logically relevant or likely relevant to the issues. No such particular correspondence or communication is specifically identified in either subpoena duces tecum . However, it is possible that such correspondence would be covered as a communication articulated in para. 4 of the subpoena duces tecum in respect of Mr. Thomson and para. 3 of the subpoena duces tecum in respect of Mr.

Miller, as those paragraphs of the subpoena duces tecum seek: All communications between any persons at any point in time, including but not limited to letters, emails, text messages, instant messages, Facebook messages, and other similar communications in your possession, custody, or control, that relate or refer to Nathan Xiao-Phillips (formerly Nathan Phillips).

(Affidavit of Mr. Thomson sworn December 1, 2022, Exhibit b) [ 54 ] While one can understand that the

interpretation of the said Election Act , as it relates to the authority of the C- KNO Tribunal, could be relevant to whether Mr. Xiao-Phillips’ advice about a quorum might be relevant to his defence, it is challenging to understand how the correspondence from either Mr. Thomson and/or Mr. Miller to the LSS wherein either provided the LSS with a copy of the Election Act could be relevant to the ultimate issue. It is possible it might be relevant to whether the interim suspension was appropriate. But Mr.

Xiao-Phillips has failed to identify the materiality or the nexus between the provision of the Election Act and the ultimate issues. However, giving such correspondence its very broadest meaning, one might conclude that it could be relevant. Whether it passes the O’Connor test at the first stage of likely relevance is not for me to decide. [ 55 ] Mr. Xiao-Phillips also argues that the documents are relevant to the witnesses’ credibility.

But he does not identify credibility in respect of any particular issue. [ 56 ] Third party records are not presumptively relevant and do not become relevant by simply suggesting that they relate to credibility “at large”. If such records are to be likely relevant on the basis of relating to credibility, it must be credibility on a specific, material issue: McNeil; O’Connor; Matthews . [ 57 ] Mr. Xiao-Phillips frames the need for all the documents listed in the subpoenas in relation to these parties over this approximate four and one-half year period as being appropriate to assess the credibility of Mr.

Miller and Mr. Thomson. Respectfully, there must be a more pointed and narrow form of disclosure that would be more appropriate in the current circumstances. Broadly arguing that credibility of these parties is at issue, and then seeking all correspondence between all of the specified parties, is procedurally egregious to address these credibility concerns. The subpoena should have properly framed the scope of sought documents, rather than framing it so broad as to be oppressive to the parties.

It is not sufficient to assert that such extensive documents are needed for credibility “at large”. [ 58 ] The documents sought to be produced must be arguably helpful to the determination of the issues being adjudicated not credibility at large. Again as I have stated multiple times, in this case, the issues are whether Mr. Xiao-Phillips was retained by the C-KNO Tribunal and whether he gave competent advice to the C-KNO Tribunal about whether it had established a quorum to make decisions. Mr.

Xiao-Phillips simply asserts and argues that the documents are relevant (other than the correspondence relating to the provision of the Election Act to anyone at the LSS which I have addressed above), but does not provide any evidentiary basis on this application or in the affidavit filed in support of the O’Connor application which would identify how the documents or categories of documents would be relevant to the issues and/or identify how they are relevant to credibility in particular.

Further, the production must not be in the nature of a fishing expedition; that is, the production must assist a complainant in uncovering something to support its existing case. [ 59 ] Here, except potentially, the correspondence between Mr. Thomson and the LSS and/or Mr. Miller and the LSS providing the LSS with a copy of the Election Act , the principle requiring a clear nexus of relevancy has not been met. Mr. Xiao-Phillips has failed to demonstrate any sufficient connection between the issues he faces and the material being requested.

No evidence is being proffered to suggest that if any of the additional specific information was made available to Mr. Xiao-Phillips it would be produced as part of his evidence and would be of assistance to the LSS disciplinary hearing panel. In the absence of a probative nexus between the information being sought and the issues to be decided, it is inappropriate to allow Mr. Xiao-Phillips broad access to the requested documents. Mr. Xiao-Phillips has failed to demonstrate relevancy in respect of the documents sought.

b) PRIVILEGE [ 60 ] The applicants also argue that much of the materials that are encompassed in the subpoena would include privileged information, either solicitor-client privilege or litigation privilege. [ 61 ] R v McClure , 2001 SCC 14 , [2001] 1 SCR 445 [ McClure ] is cited for its assertion that privilege gives rise to a prima facie presumption of inadmissibility: [28] For a relationship to be protected by a class privilege, thereby warranting a prima facie presumption of inadmissibility, the relationship must fall within a traditionally protected class.

Solicitor-client privilege, because of its unique position in our legal fabric, is the most notable example of a class privilege. Other examples of class privileges are spousal privilege (now codified in s. 4(3) of the Canada Evidence Act , R.S.C. 1985, c. C-5 ) and informer privilege (which is a subset of public interest immunity). … [35] However, solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.

As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis. [ 62 ] McClure provides that materials that are protected by privilege give rise to a prima facie presumption of inadmissibility and particularly, that solicitor-client privilege must be as close to absolute as possible to ensure the public confidence. [ 63 ] In McClure the Supreme Court of Canada identified that solicitor-client privilege is a principle of fundamental importance, but that despite its importance, the privilege is not absolute and in limited circumstances may yield to allow an accused to make full answer and defence.

The court said that the appropriate test for determining whether to set aside solicitor-client privilege is the innocence at stake test, which is a stringent test.

The privilege should only be infringed where core issues going to the guilt of the accused are involved and there is a genuine risk of wrongful conviction (paras. 46-47). [ 64 ] The court in McClure also identified that before the innocence at stake test is even considered, the person seeking the communications must establish that the information they are seeking in the solicitor-client file is not available from any other source and that the person is unable to raise a reasonable doubt as to their guilt in any other way (para. 48).

McClure identifies that the test is applied in two stages in order to reflect the dual nature of the inquiry.

[ 65 ] Specifically McClure , at paras 50 through 62 stated: 50 The innocence at stake test is applied in two stages in order to reflect the dual nature of the judge’s inquiry. At the first stage, the accused seeking production of a solicitor-client communication must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt. At this stage, the judge has to decide whether she will review the evidence. 51 If the trial judge is satisfied that such an evidentiary basis exists, then she should proceed to stage two.

At that stage, the trial judge must examine the solicitor-client file to determine whether, in fact, there is a communication that is likely to raise a reasonable doubt as to the guilt of the accused. It is evident that the test in the first stage (could raise a reasonable doubt) is different than that of the second stage (likely to raise a reasonable doubt). If the second stage of the test is met, then the trial judge should order the production but only of that portion of the solicitor-client file that is necessary to raise the defence claimed.

(1) Stage #1 52 The first stage of the innocence at stake test for invading the solicitor-client privilege requires production of the material to the trial judge for review. There has to be some evidentiary basis for the request. This is a threshold requirement designed to prevent “fishing expeditions”. Without it, it would be too easy for the accused to demand examination of solicitor-client privileged communications by the trial judge. As this request constitutes a significant invasion of solicitor-client privilege, it should not be entered into lightly.

On the other hand, the bar cannot be set so high that it can never be met. The trial judge must ask: “ Is there some evidentiary basis for the claim that a solicitor-client communication exists that could raise a reasonable doubt about the guilt of the accused ?” 53 It falls to the accused to demonstrate some evidentiary basis for his claim that there exists a solicitor-client communication relevant to the defence he raises.

Mere speculation as to what a file might contain is insufficient. 54 That is then followed by a requirement that the communication sought by the accused could raise a reasonable doubt as to his guilt. This must be considered in light of what the accused knows. It is likely that the accused who, it must be remembered, has had no access to the file sought, may only provide a description of a possible communication. It would be difficult to produce and unfair to demand anything more precise.

It is only at stage two that a court determines conclusively that such a communication actually exists. 55 The evidence sought should be considered in conjunction with other available evidence in order to determine its importance. It is the totality of the evidence that governs. However, when the accused is either challenging credibility or raising collateral matters, it will be difficult to meet the standards required of stage one. 56 Where an accused fails to show that the information sought could raise a reasonable doubt as to guilt, the solicitor-client privilege prevails.

(2) Stage #2 57 Once the first stage of the innocence at stake test for setting aside the solicitor-client privilege has been met, the trial judge must examine that record to determine whether, in fact, there exists a communication that is likely to raise a reasonable doubt as to the accused’s guilt.

The trial judge must ask herself the following question: “ Is there something in the solicitor-client communication that is likely to raise a reasonable doubt about the accused’s guilt ?” 58 After a review of the evidence of the solicitor-client communication in question, the judge must decide whether the communication is likely to raise a reasonable doubt as to the guilt of the accused. In most cases, this 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.

Simply providing evidence that advances ancillary attacks on the Crown’s case (e.g., by impugning the credibility of a Crown witness, or by providing evidence that suggests that some Crown evidence was obtained unconstitutionally) will very seldom be sufficient to meet this requirement. 59 The trial judge does not have to conclude that the information definitely will raise a reasonable doubt. If this were the case, the trial would effectively be over as soon as the trial judge ordered the solicitor-client file to be produced. There would be nothing left to decide.

Instead, the information must likely raise a reasonable doubt as to the accused’s guilt.

Also, upon reviewing the evidence, if the trial judge finds material that will likely raise a reasonable doubt, stage two of the test is satisfied and the information should be produced to the defence even if this information was not argued as a basis for production by the defence at stage one. 60 In determining whether or not the solicitor-client communication in question is likely to raise a reasonable doubt as to the guilt of the accused, the trial judge should consider that the communication in the solicitor-client file cannot be marginal but must be sufficient to establish the basis for its admission.

It is the totality of the evidence then available that the trial judge considers in determining whether it is likely that the evidence can raise a reasonable doubt. 61 The difficulties described in successfully overcoming solicitor-client privilege illustrate the importance and solemnity attached to it.

As described earlier, it is a cornerstone of our judicial system and any impediment to open candid and confidential discussion between lawyers and their clients will be rare and reluctantly imposed. [Emphasis in original] [ 66 ] As articulated, at the first stage, the accused seeking production of a solicitor-client communication must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt. At this stage, the judge has to decide whether they will review the evidence.

The judge must ask if there is some evidentiary basis for the claim that a solicitor-client communication exists that could raise a reasonable doubt about the guilt of the person seeking the communication. It falls to the person seeking the communication to demonstrate some evidentiary basis for his claim. Mere speculation

as to what a file might contain is insufficient. If the judge is satisfied that such an evidentiary basis exists, they must, at the second stage,examine the record and ask if there is something in the solicitor-client communications that is likely to raise a reasonable doubt about theperson’s guilt. In most cases, this means that unless the solicitor-client communication goes directly to one of the elements of the offencewith which the individual is charged, it will not be sufficient to meet this requirement.

If the second stage of the test is met, then thejudge should order the production, but only of that portion of the solicitor-client file that is necessary to raise the defence claimed. [67] Mr. Thomson and Mr. Miller both assert privilege in respect of the documents sought. In addition, it might bepresumed that a large degree of the communications demanded by the subpoena would be protected by solicitor-client privilege. Thismay be easily inferred from the nature of the relationships of Mr. Thomson and Mr. Miller with several categories of the communicationsought. Both Mr. Thomson and Mr.

Miller acted as counsel for many of the parties and those clients would be entitled to the protectionsafforded by solicitor-client privilege, which is the privilege of the clients. Privilege in relation to Mr. Thomson’s and/or Mr. Miller’scorrespondence with the LSS officials, providing them with a copy of the Election Act, would not be a category of correspondencesubject to privilege. [68] Mr. Xiao-Phillips makes the argument that solicitor-client privilege does not necessarily apply just becausesome individuals or entities were clients of some lawyers. Mr.

Xiao-Phillips argues that there was no evidence that the documentsrequested contain:

a) communications between a lawyer and a client;

b) which entailed the seeking or giving of legal advice; and c)which was intended to be confidential by the parties. To be frank, this last statement by the respondent is disingenuous. In requestingdocuments involved in prior legal work, as well as correspondence between a lawyer and a client, there are going to be materials subjectto solicitor-client privilege. The mere argument that the specific requests in the subpoenas are important does not override the sanctity ofsolicitor-client privilege. Here there is no evidence from Mr.

Xiao-Phillips which identifies any base for breaching such privilege in thecurrent matter. [69] The case that Mr. Xiao-Phillips must meet is to demonstrate his competence as a lawyer and that he was retainedto provide legal advice. Granting a broadly framed subpoena in the current matter does not, on the evidence, possibly justify breachingsolicitor-client privilege. If specific documents pertaining to specified parties were identified in Mr.

Xiao-Phillips’ evidence, and anevidentiary basis was provided that allowed me to conclude that there exists a communication that goes to the elements of one of theoffences, the court could then properly search for the answer of whether absolute necessity may be found to breach privilege. Mr. Xiao-Phillips has failed to provide any such evidentiary basis. [70] The applicants also claim litigation privilege. As far as litigation privilege is concerned, Mr.

Xiao-Phillipsargues that such privilege generally ends with the litigation in question as is provided in Black v Canada (Minister of Justice), 2006 SCC39, [2006] 2 SCR 319: [36] I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the common law litigationprivilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege: Lifford[(2005), (ON CA), 76 OR (3d) 401 (Ont CA)]; Chrusz [(1999), (ON CA), 45 OR (3d) 321 (OntCA)]; Big Canoe [(2002), (ON CA), 62 OR (3d) 167 (Ont CA)]; Boulianne v.

Flynn, (ON SC),[1970] 3 O.R. 84 (H.C.J.); Wujda v. Smith (1974), (MB KB), 49 D.L.R. (3d) 476 (Man. Q.B.); Meaney v.Busby (1977), (ON SC), 15 O.R. (2d) 71 (H.C.J.); Canada Southern Petroleum Ltd. v. Amoco Canada PetroleumCo. (1995), (AB KB), 176 A.R. 134 (Q.B.). See also Sopinka, Lederman and Bryant; Paciocco and Stuesser. [71] The above quote is a nuanced one, and the entire paragraph was not referred to by Mr. Xiao-Phillips in his brief.Mr. Xiao-Phillips failed to include the reference that litigation privilege can extend to closely related proceedings.

It appears that thecurrent litigation involving the LSS discipline charges arise from the prior litigation. The current matters would likely constitute beingclosely related proceedings protected by litigation privilege. However, neither party has addressed this in relation to any of the specificdocuments or with any specificity and having regard to my conclusions on the other basis to quash the subpoenas, I need not address this.

c) OVERLY BROAD [72] A further issue that must be considered is the breadth and scope of the materials sought. [73] The court in Dalgleish provided at paras. 7-9 that a subpoena duces tecum must identify documents sought with“reasonable distinctiveness” and with as much precision as is fair and feasible. [74] The case of Ed Miller Sales & Rentals Ltd. v Caterpillar Tractor Co. (1990), (AB KB), 78Alta LR (2d) 207 (Alta QB) [Ed Miller Sales], provides an example of a subpoena being quashed for being oppressive in scope: [7] … Similarly, in Lee v Angas (1866), LR 2 EQ 59, the subpoena duces tecum was served upon a solicitor who was not a party tothe action to produce all papers and documents related to a particular piece of farm property, including correspondence between the lawfirm and either of the plaintiff or the defendant for a period of over 30 years, without specifying the particular documents required.

Inobiter, Sir W Page Wood VC stated at p. 63: A subpoena in this general form, not for production of any document in particular, but calling upon the witness to ransack his papers fora period of thirty-three years, is too wide, being in effect a bill of discovery against a witness.

There is no case to shew that Courts, eitherof common law or equity, will act upon a subpoena so general in form … No person is to be subjected to the performance of duties not incumbent upon him by any legal or moral obligation, nor to penalties fornoncompliance … Such a search as would be required would be very onerous even upon a Defendant, but in the case of a solicitor, whois not a party to the suit, he is not bound to expose himself, without receiving any reward or compensation, to the trouble and expense ofsearching for particulars of everything that has happened in his office for the last thirty-three years.

He must speak the truth within hisknowledge, but he is not bound to make this burdensome search for evidence at his own expense. [75] We see from Ed Miller Sales that if the scope of a subpoena is overly broad, this may constitute a ground to

quash the subpoena. [ 76 ] Wal-Mart provides the factors to be considered in assessing whether a subpoena amounts to being a fishing expedition: [41] As to the suggestion that the documents demanded were so broadly and vaguely described that they amounted to a fishing expedition, the law in this respect was fairly summarized by Bayda J. (as he then was) in Dalgleish and Basu after a careful analysis of the relevant authorities. Although the judgment was in respect of a subpoena, the principles apply here.

He found the issue to be determined was whether the specification was so broad and indefinite that the demand is oppressive and exceeds the demanding party's necessities.

In determining this question, the tribunal must take into account (1) whether the witness is informed with sufficient particularity of the documents that are needed for the inquiry; (2) whether the party issuing the subpoena had an opportunity to examine the documents beforehand; if not, greater latitude must be given; (3) whether the witness is or is not a party to the proceedings so that she has some familiarity with the documents; and (4) what the scope of the proceedings is. (Emphasis added) [ 77 ] Mr. Xiao-Phillips seeks “all communications” between Messrs.

Thomas, Miller, Chief and Council, the appealing parties, and C-KNO Tribunal members and any permutation thereof, regardless of whether they are the designated or undesignated recipients over a four year period. This is extremely broad and general. The respondent has not provided adequate specificity in his requests and has failed to provide either reasonable distinctiveness or precision that is fair and feasible. For the current subpoena to survive judicial scrutiny would require a reasonable scope of materials sought and a higher degree of specificity than is found.

The breadth of the subpoena and documents sought goes well beyond the scope of the inquiry by the LSS in respect of Mr. Xiao- Phillips. The scope is so broad and indefinite that it is oppressive. Additional specificity may have helped validate the subpoena in question, but as it exists today, it is overly broad and is quashed as well for this reason. [ 78 ] Pointed requests for specific documents or a category of documents would likely survive the test.

There may be instances were the documents sought may not be neatly isolated, but in the current scenario there appears to be no attempt to identify specific documents or their materiality. Without properly framing the scope of the sought documents to a reasonable degree, I am not satisfied that all the materials specified in the subpoena are necessary for Mr. Xiao-Phillips to address the issues. The scope is overly broad and oppressive. The oppressive scope of the subpoenas point to the respondent being on a fishing expedition. CONCLUSION [ 79 ] The subpoena duces tecum for each of Mr. Thomson and Mr.

Miller requiring them to attend the LSS disciplinary panel hearing to give evidence and to bring with them correspondence between themselves and Mr. Huber and/or other LSS persons wherein either of Mr. Thomson and/or Mr. Miller first supplied Mr. Huber and/or other LSS persons with a copy of the Election Act , are not quashed. [ 80 ] In other aspects, the respondent has failed to satisfy me that the documents sought in either the subpoena for Mr. Thomson or for Mr. Miller are relevant to the issues in the respondent’s LSS disciplinary hearing.

The respondent has failed to provide an evidentiary basis for the claim that the communications raise a reasonable doubt about the innocence of the respondent such that solicitor-client privilege should be pierced. As well, the subpoenas are so broad as to be oppressive. The subpoena duces tecum for Mr. Thomson and Mr. Miller are quashed insofar as they require production of the documents listed in the subpoenas (with the exception of the specific documents in para. 78 above). [ 81 ] The applicants shall have one set of costs of the application as against the respondent pursuant to

Schedule 1, B,

Part 3, Column 2. J. C.L. DAWSON