CanLLii, which posts all written decisions distributed by courts and tribunals has just published a 19 page one concerning Oshawa and its Airport and the lawsuit by the Canadian Flight Academy. Note it is not the final decision on the lawsuit, but a RULING ON A MOTION RE THE PRODUCTION OF DOCUMENTS AND REFUSALS.
The City of Oshawa refused to produce some of the documents and questions the CFA requested. The City claimed them to be confidential under solicitor-client privilege, litigation privilege and also personal privilege under the Municipal Freedom of Information and Privacy Act .
The Judge divided the outstanding questions and requests for documents into four main groups:
i) relating to the issue of airport noise complaints (Issues 5, 9-14, 77-93);
ii) relating to the issue of whether CFA had a parcel of land known as “Part 42” added to its leasehold by the City as compensation for losing it rights over other land that the City took to build a new airport taxiway, or whether these two transactions were separate;
iii) relating to a claim by the City that it offered in 2011 to sell land to CFA, as an alternative to extending CFA’s lease; and
iv) over which the City is claiming privilege.
The longest is iv) and IMO becomes a mind numbing ping pong review of years of emails between the parties with the Judge determining the why or why not the City must disclose the documents it refuses.
Indicative of how much this exercise amounts to a back and forth tally, the Judge a couple times uses the idiom 'on the other side of the ledger' (at [73] and [84])
Imo the most interesting paragraphs are:
[76] The City takes the position that s. 32 of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M.56 prevents the disclosure of the complainants’ “personal information”. However, s. 32(e) specifically permits the disclosure of personal information when it is “permitted or required by law”. I am accordingly satisfied that the MFIPPA does not bar me from ordering the City to produce unredacted copies of the complaint records to CFA for inspection under rule 30.04(5): see Gargari v. Toronto Catholic District School Board, 2020 ONSC 6903, para. 18.
and
"[254] Litigation privilege attaches to documents that are created for the “dominant purpose” of litigation: Blank v. Canada (Minister of Justice), at para. 59.
[255] The main subject-matter of the September 30, 2020 report concerns an issue that was not directly related to the ongoing litigation between CFA and the City, namely, whether the City should exercise its option under the 1998 lease to purchase CFA’s leasehold improvements.
[256] This issue is plainly affected by the ongoing litigation. If CFA’s position that its lease was extended in 2010 ultimately prevails, the City’s option to purchase the leasehold improvements will not yet have vested. Moreover, an injunction is presently in place that preserves the status quo between the parties until the litigation is concluded, which permits CFA to continue to occupy the leased premises.
[257] However, I am not satisfied that this report was prepared for the “dominant purpose” of the ongoing litigation. The question of whether the City should exercise its purchase option would have had to be addressed even if CFA had not started this litigation. Moreover, the report makes only passing mention of the litigation, noting that the City’s internal and outside counsel “continue to be in communication regarding related court proceedings”.
[258] I am also not satisfied that solicitor-client privilege attaches to most of the report. Mr. Munro and Mr. Goodeve are not lawyers themselves, and they do not at any point in their report convey to the Committee any legal advice they received from counsel. While the authors of the report noted that they had had “communication” with counsel “regarding related court proceedings”, they do not reveal anything about any legal advice they might have received."
After dissecting so many emails, the summary reads that [265] "The CFA’s motion is accordingly granted in part, on the basis set out above." and [267] "There has been divided success on the motion, but on balance I find that the City has been the more successful party. I will accordingly direct the City to file its costs materials first, within four weeks of the date of the release of these reasons. CFA will then have a further four weeks to file its responding materials."
The City of Oshawa refused to produce some of the documents and questions the CFA requested. The City claimed them to be confidential under solicitor-client privilege, litigation privilege and also personal privilege under the Municipal Freedom of Information and Privacy Act .
The Judge divided the outstanding questions and requests for documents into four main groups:
i) relating to the issue of airport noise complaints (Issues 5, 9-14, 77-93);
ii) relating to the issue of whether CFA had a parcel of land known as “Part 42” added to its leasehold by the City as compensation for losing it rights over other land that the City took to build a new airport taxiway, or whether these two transactions were separate;
iii) relating to a claim by the City that it offered in 2011 to sell land to CFA, as an alternative to extending CFA’s lease; and
iv) over which the City is claiming privilege.
The longest is iv) and IMO becomes a mind numbing ping pong review of years of emails between the parties with the Judge determining the why or why not the City must disclose the documents it refuses.
Indicative of how much this exercise amounts to a back and forth tally, the Judge a couple times uses the idiom 'on the other side of the ledger' (at [73] and [84])
Imo the most interesting paragraphs are:
[76] The City takes the position that s. 32 of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M.56 prevents the disclosure of the complainants’ “personal information”. However, s. 32(e) specifically permits the disclosure of personal information when it is “permitted or required by law”. I am accordingly satisfied that the MFIPPA does not bar me from ordering the City to produce unredacted copies of the complaint records to CFA for inspection under rule 30.04(5): see Gargari v. Toronto Catholic District School Board, 2020 ONSC 6903, para. 18.
and
"[254] Litigation privilege attaches to documents that are created for the “dominant purpose” of litigation: Blank v. Canada (Minister of Justice), at para. 59.
[255] The main subject-matter of the September 30, 2020 report concerns an issue that was not directly related to the ongoing litigation between CFA and the City, namely, whether the City should exercise its option under the 1998 lease to purchase CFA’s leasehold improvements.
[256] This issue is plainly affected by the ongoing litigation. If CFA’s position that its lease was extended in 2010 ultimately prevails, the City’s option to purchase the leasehold improvements will not yet have vested. Moreover, an injunction is presently in place that preserves the status quo between the parties until the litigation is concluded, which permits CFA to continue to occupy the leased premises.
[257] However, I am not satisfied that this report was prepared for the “dominant purpose” of the ongoing litigation. The question of whether the City should exercise its purchase option would have had to be addressed even if CFA had not started this litigation. Moreover, the report makes only passing mention of the litigation, noting that the City’s internal and outside counsel “continue to be in communication regarding related court proceedings”.
[258] I am also not satisfied that solicitor-client privilege attaches to most of the report. Mr. Munro and Mr. Goodeve are not lawyers themselves, and they do not at any point in their report convey to the Committee any legal advice they received from counsel. While the authors of the report noted that they had had “communication” with counsel “regarding related court proceedings”, they do not reveal anything about any legal advice they might have received."
After dissecting so many emails, the summary reads that [265] "The CFA’s motion is accordingly granted in part, on the basis set out above." and [267] "There has been divided success on the motion, but on balance I find that the City has been the more successful party. I will accordingly direct the City to file its costs materials first, within four weeks of the date of the release of these reasons. CFA will then have a further four weeks to file its responding materials."
