Sanford v. Carleton Road Industries Association, 2020 NSSC 170

SUPREME COURT OF Nova Scotia Citation: Sanford v. Carleton Road Industries Association , 2020 NSSC 170 Date: 20200514 Docket: Ken No 347156 Registry: Kentville Between: Rhonda Sanford Plaintiff v.

Carleton Road Industries Association Defendant Judge: The Honourable Justice John Keith Heard: February 25, 2020, in Kentville, Nova Scotia Final Written Submissions: May 8, 2020 Counsel: Derrick Kimball, Q.C. and Christina Macdonald, counsel for the Plaintiff Mark Tector and Richard Jordan, counsel for the Defendant By the Court: ISSUES [ 1 ] The Defendant Carleton Road Industries (“ Carleton ”) is an incorporated, not-for-profit society operating in Lawrencetown, Nova Scotia. Carleton provides vocational and life skills training for disabled adults. [ 2 ] The Plaintiff Rhonda Sanford (“ Ms.

Sanford ”) worked as a Vocational Program Instructor with Carleton from December 11, 2005 until her employment was terminated on September 23, 2008. [ 3 ] Ms. Sanford subsequently sued Carleton, alleging wrongful termination and intentional infliction of emotional harm. She seeks general, aggravated, and punitive damages. [ 4 ] Carleton defended the action. [ 5 ] The parties exchanged documents and began discovery examinations. [ 6 ] Here, by Notice of Motion issued December 18, 2019, Ms. Sanford sought an Order compelling Carleton to produce various documents.

An original hearing took place on February 25, 2020, at which time additional issues arose. As a result, the motion was adjourned until May 14, 2020, with a

schedule established for further filing of written submissions. [ 7 ] During the course of exchanging these written submissions the issues in dispute narrowed. In particular, Carleton produced all board Minutes in its possession for the period February to September 2018. [1] In addition, Carleton decided to disclose the policies, procedures, and bylaws in question, while maintaining the right to object to their relevance and admissibility in the future. There is obviously nothing improper about the approach taken by Carleton regarding these corporate governance documents.

And there is no continuing need for me to adjudicate upon that production issue. [ 8 ] In addition, Ms. Sanford properly withdrew her request for information regarding the amounts which Carleton has spent on legal fees. This was also appropriate. I refer to Maranda v. Richer , 2003 SCC 67 , in which the Supreme Court of Canada confirmed that information contained in the lawyer’s bills of account were prima facie privileged (para 33). [ 9 ] Ultimately, the following discrete disclosure issues remained for judicial determination:

1. Board Minutes : This issue can be further subdivided into the following three subcategories: a. Whether three sentences redacted in the minutes of Carleton’s Board meeting on March 5, 2008 are protected by solicitor- client privilege; b. Whether certain paragraphs redacted from the minutes of Board meetings held on April 2, May 20, June 23, and September 11, 2008 are relevant. 2. Draft termination letters : Whether Carleton should produce draft copies of termination letters to Ms.

Sanford prepared by its legal counsel. [ 10 ] The parties agreed that I could render an oral decision on May 14, 2020 on the remaining issues, without the need for further oral argument. This is my decision. ANALYSIS 1. Board Minutes a. March 5, 2008 Minutes [ 11 ] In a sealed envelope filed for my exclusive review, Carleton produced the complete and unredacted copies of the minutes for the Board meeting conducted March 5, 2008. There are three specific sentences which have been redacted on the basis of solicitor and client privilege.

All three sentences are on the second page of these Board minutes. [ 12 ] I have carefully reviewed the sentences in question, and it is clear to me that the comments on these three sentences relate to advice and recommendations expressly attributed to (and received from) Carleton’s legal counsel. There has been no waiver of privilege and I am satisfied that the claim of privilege is appropriate in the circumstances. Ms.

Sanford is not entitled to disclosure of this information. [ 13 ] I return to the March 5, 2018 Minutes below, as they provide some context for the Plaintiff’s further demand for two draft termination letters prepared by the Defendant’s legal counsel at that time. b. Relevance of redacted paragraphs in Board Minutes from April 2, 2008, May 20, 2008, June 23, 2008, and September 11, 2008 [ 14 ] Carleton produced Board minutes containing redactions made on the basis that the redacted information was irrelevant.

It also filed with the Court in a sealed envelope complete, unredacted copies of these minutes so I might review and determine whether the proposed redactions are appropriate in the circumstances. [ 15 ] There is a presumption for full disclosure in an action (Rule 14.08) although that presumption is obviously circumscribed by an obligation to produce only that which is relevant (Rules 14.01, 15.02 and 16.03). [ 16 ] The scope of relevancy under Nova Scotia’s Civil Procedure Rules has been thoroughly analysed in the jurisprudence. There is no need to expand upon it here.

I refer to Saturley v CIBC World Markets Inc , 2011 NSSC 66 and Saturley v CIBC World Markets Inc , 2012 NSSC 57 ; and Maple Trade Finance Inc. v Euler Hermes Canada , 2015 NSSC 37 . [ 17 ] Having said that, there is an issue around the process and method by which a party may properly redact portions of a document on the basis of relevance. [ 18 ] In its submissions, Carleton identifies two lines of authority around how a party might redact information deemed to be irrelevant. [ 19 ] In the first line of authorities, documents are redacted for relevancy in advance of disclosure to an adverse party.

Those redactions occur without judicial oversight. At the same time, they are obviously subject to review by the court should one party decide to challenge the redactions. See, for example, Banks v. National Bank Financial Ltd. , 2011 NSSC 79 (“ Banks ”); Saturley v. CIBC , 2011 NSSC 310 (“ Saturley ”); and Armstrong v. Halifax County Condominium Corporation No. 9 , 2014 NSSC 208 . [ 20 ] In the second line of authorities, a party seeking to make redactions on the basis of relevance proactively brings those redactions forward for Court approval.

In Hustins v Locke , 2020 NSSC 17 (“ Hustins ”), Justice McDougall was considering an issue in which the parties were debating the scope of redactions that might be made on relevance and brought that before the Court.

During the course of his decision, Justice McDougall wrote at paragraph 47: A party may not unilaterally redact information from an otherwise relevant document, nor may a judge order this redaction, unless the party has rebutted the presumption of full disclosure (see Rules 14.08, 14.12, and 15.07). [ 21 ] Neither line of cases expressly or directly considered the alternative approach reflected in the other lines of cases.

That said, both lines of cases are aligned in that the burden of demonstrating the appropriateness of proposed redactions based on relevance remains upon the party seeking to make the redactions. [ 22 ] The issue boils down to who should be required to bring a motion for a judicial determination on proposed redactions based on relevancy and when should that motion be brought? Should:

1. The party seeking to make redactions based on relevancy be required to bring an interlocutory motion (and seek judicial pre- approval) before these redactions are made? 2. Or should the party challenging redactions be required to bring a motion for judicial oversight after the redactions have already been made by the other party? [ 23 ] Subject to the conditions or qualifications which I describe in paragraph 30 below, there is nothing inherently wrong with either approach.

Put slightly differently, I do not conclude that one approach applies and should be adopted in all cases regardless of the circumstances – with the other approach being rejected as inappropriate. [ 24 ] There is no doubt that unilaterally chopping up a document on the basis of relevancy is fraught with risk. It threatens the integrity of the document. In addition, redacting information technically and narrowly deemed “irrelevant” might compromise a party’s ability to understand the relevancy of the information which remains.

The importance or significance of the relevant information might be lost unless it can be considered in its full and proper context. [ 25 ] Many relevant documents contain information that covers a wide range of topics, only some of which might be strictly relevant (narrowly construed) to the dispute. Disclosing only those specific, small snippets of information that one party deems relevant to the dispute gives rise to innumerable problems and endangers the disclosure process.

It potentially compromises another party’s ability to analyse or understand a document in a meaningful way; or appreciate the context in which clearly relevant information arose. [ 26 ] Similarly, leaving some extraneous information while making more focussed or surgical redactions of information deemed irrelevant also raises problems. In particular, it engenders suspicion which, in turn, subverts confidence in the presumption of full disclosure and the disclosure process generally.

The obvious questions include: Why is certain information being redacted as irrelevant while other information, which is clearly irrelevant, is disclosed? What was especially “irrelevant” about a particular piece of information to justify redaction on a seemingly exceptional basis? [ 27 ] These kinds of problems and questions resonate in this case. The Board minutes in question summarize discussions on such things as alarm systems, pension plans, hours of operation and a whole host of other matters which will have absolutely no bearing on this litigation.

If viewed narrowly and in isolation, this extraneous information may be seen as irrelevant. Yet, it was not redacted and was properly disclosed. In the end, Carleton redacted certain information deemed to be irrelevant while other clearly extraneous information (e.g. a discussion about hours of operation with no apparent connection to the alleged cause of action) is left untouched. [ 28 ] What of redactions that are not made unilaterally but are proactively identified and, if the parties cannot agree, brought before the Court.

Should a party be compelled to seek judicial approval in advance of making redactions on the basis of relevancy and completing disclosure? There are problems associated with this approach. For example: 1. To avoid the cost and delay of seeking judicial pre-approval, it may be tempting to simply disclose information that does not affect the interests of the parties themselves but could undermine the privacy interests of non-parties which would otherwise clearly be entitled to protection.

If that were to occur and even though the implied undertaking (Rule 14.03) is designed to protect the confidentiality of information disclosed during litigation, those safeguards may prove inadequate. The private information involving non-parties might well (even innocently or inadvertently) appear on the public record without any notice to the non-party whose privacy interests are affected - and cause unintentional collateral damage. I note that the privacy interests of non-parties were precisely the issue engaged in both Hustins and the Saturley decisions. 2.

The Rules do contemplate the possibility of redactions based on relevance. For instance, the obligation to “sort” relevant documents in Rule 15.02 and the obligation to sort relevant information in Rule 16.03 is informed and guided by the definition of the “sort” in Rule 14.02. Rule 14.02(1) defines sort as including: (

i) physically separate relevant, non-privileged documents from other documents and distinguish relevant, non-privileged electronic information from other electronic information, (ii) separate or redact irrelevant or privileged information from a document or electronic information containing some information that is relevant and not privileged, (iii) place the document or electronic information where it will be preserved for disclosure; [Emphasis added] [ 29 ] This is to say nothing of the costs and delay which would be visited upon the disclosure process if a party seeking to redact information considered irrelevant must first seek judicial pre-approval in every case. [ 30 ] In my view, the following principles apply in the process of redacting information considered irrelevant by the disclosing party: 1.

The presumption of full disclosure of all relevant information remains and must be respected. 2. Parties are encouraged to reasonably discuss and hopefully resolve disclosure disputes where possible. At a minimum, these discussions might focus or narrow the issues to be put before the Court as part of a motion, for example, for directions under Rule 15.07. That said, negotiations around these issues should not be considered compulsory; and the disclosure process should not be unduly delayed by negotiations which prove unreasonable or unsuccessful; 3.

The process of redacting information from a document on the basis of relevance should be, in my view, unusual or rare; it should be the exception, and not the rule. In addition, information to be redacted should be as surgical and targeted as possible. Thus, again, one party redacting on the basis of relevance should occur only in exceptional circumstances;

4. Redacting information on the basis that it is irrelevant must serve to excise clearly irrelevant information and protectparticular, identifiable interests which might be unduly and adversely prejudiced if disclosed in litigation. For example, the privacyinterests of non-parties whose information in the documents clearly has nothing to do with the litigation may prove worthy of protection. The personal, medical information of patients who are non-parties might also prove worthy of redaction in order to protect their privacy.

Similar concerns might arise regarding the personal financial information of non-parties, as was the case in both the Banks and Saturleydecisions. There are other examples and it is not my intention to offer an exhaustive list of truly irrelevant information that should beredacted. The point is that redacting information from a document (and compromising an opposing party’s ability to review the entiredocument in its full context) should seek to protect particular, identifiable interests worthy of that protection.

Parties should otherwise bediscouraged from stripping information from a document on the basis that the relevance of particular bits of information may not readilyapparent, if viewed in isolation. This additional information might well provide useful, relevant context or reveal the meaning andmagnitude of the relevant information also contained in the same document. On balance, it is better to err on the side of caution and, asmuch as reasonably possible, protect the integrity of the document by minimizing the practise of selective redactions.

A relevantdocument should, to the extent reasonably possible, be left intact. 5. Unless it is plain and obvious based on the context within the redacted information found in the document, it is insufficientto simply add the label “Redacted – Irrelevant” in the blank space left after information is redacted. The party making the redactionsmust provide sufficient information for the other party, and potentially for the court, to understand the reason for the redaction.

Thiswould include, where applicable, the names of any persons mentioned in the redaction and a general statement as to the content of theinformation such that the claim of “irrelevant” can be fairly and reasonably assessed. An example of where the nature of the redactedinformation is plain and obvious based on context (and therefore does not require additional information beyond the label “Irrelevant”)would be where a number is redacted after a “$” symbol. In this example, the nature of the redaction (hiding the actual amount of moneyinvolved) would be obvious from the context. 6.

A party who redacts information subsequently deemed to be relevant (and ordered disclosed) takes a risk in terms of costs,having regard to the presumption of full disclosure and its importance to the fair and just determination of disputes. [31] With these principles in mind, I have reviewed the redactions proposed by Carleton, considered the issue of relevance, andconclude as follows: 1. The redactions made by Carleton involving the personal information of non-parties are irrelevant. Those redactions areappropriate, and they stand.

Although, again, I note that additional information beyond the label “Redacted – Irrelevant” should havebeen provided to better enable opposing parties to understand the basis for the redaction. 2. As a general observation, redactions involving performance issues and litigation involving Peter Grimmer shall bedisclosed. Some of the redacted information actually refers to Ms. Sanford by name. In any event, Mr. Grimmer and his relationshipwith the Plaintiff Ms.

Sanford was clearly put in issue in the Statement of Claim as being among the circumstances which she allegedpreceded her ostracization and eventual termination. I will not go into the specific allegations in the Statement of Claim but note that shesuggests that Mr. Grimmer does figure prominently in those allegations and her eventual placement on stress leave and eventualtermination. To be clear, I am not saying, and specifically do not find, that any such allegations (or inferences which might be drawnfrom those allegations) have been proven or are even fair or reasonable.

I simply say they are relevant to the causes of action as pleadedand should be disclosed. [32] The specifics of the redactions are attached as Appendix “A” to this decision. [33] With respect to the scope of the timeline, I agree with Carleton that the minutes of Board meetings following Ms. Sanford’stermination are not relevant. It is clear from her cause of action that the material facts which give rise to her cause of action are thosewhich lead up to her termination. Anything beyond that, in my view, at this stage, would constitute a fishing expedition. [34] I do agree with Ms.

Sanford that some of the minutes for the years preceding February 2008 should be disclosed. I do not agreethat they should be disclosed prior to the commencement of her employment. But the disclosure of minutes in advance of February 2008is relevant to understand the context upon which the issues seem to have begun to arise in February 2008, and how they arose in the firstplace. [35] I note that Carleton has already agreed to produce board minutes from January 2008 which is the month before the first datespecifically mentioned in the Amended Statement of Claim.

I find that this is an appropriate concession on the part of Carleton, but Iwould expand that search back to and including February 2007. 2. Draft Letters of Termination [36] I said earlier that the issue which arose with respect to the letter of termination relates, at least in part, to the March 5, 2008Board meeting and the minutes from those meetings. There was a reference to a termination letter in those minutes, and they became thesubject matter of an exchange during the examination for discovery of Ms.

Catherine Savage, who was a former Carleton Board member. [37] The fact of the termination letter arose but, in my view, there has been no waiver – first, the documents, as work product of thelawyer, are prima facie privileged and are entitled to be protected. I find, based on the evidence that is before me today, there was beenno waiver of that privilege. And there is nothing, based on the evidence before me, that would entitle Ms. Sanford to go beyond theknowledge of the fact that counsel was engaged at this point and had prepared termination letters. (see, Mitsui & Co. (Point Aconi) Ltd.v.

Jones Power Co., 2000 NSCA 96; Solosky v. Canada, (SCC), [1980] 1 SCR 821 (SCC); Saturley v. CIBC WorldMarkets Inc., 2010 NSSC 361; Cusson v. Quan, 2004 CarswellOnt 3395 (SCJ); Currie v. Symcor, (Ont. Div. Ct.);and, Wang v. BC Medical Association, 2011 BCSC 1658). [38] In other words, and based on the evidence before me, she is not entitled to look behind that cloak of privilege and review thecontent of the draft letters. If additional facts emerge in the future, which might change that situation, that would be for another

proceeding. [ 39 ] Counsel for Ms. Sanford shall prepare the Order confirming this decision. Costs are payable to Ms. Sanford, in an amount to be determined by subsequent Order. [ 40 ] Finally, I wish to thank counsel for narrowing the issues and for their professionalism throughout. Keith, J.

Schedule “A” With regard to the Plaintiff’s second request, all minutes of Board meetings held between February 2007 and September 2008 inclusive in the possession of the Defendant are to be produced, subject to the directions below. 1. With respect to all Board minutes ordered produced but not yet provided to the Plaintiff, the following directions apply: a. Redactions for relevance should be specific and precise and must only excise irrelevant information. b.

Redactions must protect identifiable interests that should be protected, such as the privacy interests of non-parties whose information has nothing to do with the issue of the litigation. c. Unless it is plain and obvious by the context, parties redacting for relevance should provide reasons and a general statement of the content of the information such that relevancy can be reasonably and clearly assessed. 2. All minutes of Board meetings as specified below are to be produced without redactions, except for the following redactions which are sustained: a. Minutes of March 5, 2008 i.

On page 2, the redactions specified on the basis of solicitor-client privilege; ii. On page 3, the redactions noted as “Redacted – Irrelevant”; iii. On page 3, the redactions noted as “Redacted”; b. Minutes of April 2, 2008 i. On page 2, within the redaction specified on the basis of relevance, the redaction of the following specific passages, on the basis of solicitor-client privilege: 1. The sentence referring to “the lawyer, Andy”, and 2. The final two sentences; ii. On page 3, the first redaction specified on the basis of solicitor-client privilege; iii. On page 3, the redaction of legal fee amounts; iv.

On page 3, the redaction specified on the basis of relevance; c. Minutes of May 20, 2008 i. On page 3, the redaction of legal fee amounts; d. Minutes of June 23, 2008 i. On page 2, the first redaction specified on the basis of relevance; ii. On page 3, the redaction of legal fee amounts; e. Minutes of September 11, 2008 i. On page 2, within the first redaction specified on the basis of relevance, the redaction of the following specific passages, on the basis of solicitor-client privilege:

1. Beginning with “Andy Montgomery” to and including the word “scenarios”; and 2. The last sentence of that paragraph; ii. On page 2, the second redaction specified on the basis of relevance; iii. On page 3, the redactions of two legal fee amounts; f. Minutes of September 25, 2008 i. On page 2, the redaction of legal fee amounts. [1] There was one exception: Board minutes from a meeting which occurred on February 8, 2008. However, Carleton confirmed that copies of these minutes were no longer in their possession, custody, or control. If those minutes once existed, they are lost. Ms.

Sanford complains that these Board minutes (and other minutes for the period 2009 – 2011) are no longer in Carleton’s custody or possession from 2009 through to 2011. Having said that, with respect to the February 8, 2008 minutes, Ms. Sanford did obtain a redacted version of these minutes and Carleton notes that the only information now unavailable to Ms. Sanford are certain portions which are redacted for solicitor and client privilege. At most, Carleton submits that Ms. Sanford may have lost the ability to challenge the claim for privilege.

In any event, the only issue before me is one of production and disclosure. Carleton has confirmed this position, and there is no evidence to suggest that Carleton is somehow being untruthful (i.e. that it actually has possession or control of these minutes and is falsely representing otherwise). Any additional issues in respect of this matter are not before me.