Summitt Energy Management Inc. v. Ontario Energy Board, (2012) 292 O.A.C. 268 (DC)

• Judge: Perell, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: Tuesday April 24, 2012
• Jurisdiction: Ontario
• Citations: (2012), 292 O.A.C. 268 (DC);2012 ONSC 2753

Summitt Energy Mgt. Inc. v. Energy Bd. (2012), 292 O.A.C. 268 (DC)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. MY.035

Summitt Energy Management Inc. (appellant) v. Ontario Energy Board (respondent)

(624/10; 2012 ONSC 2753)

Indexed As: Summitt Energy Management Inc. v. Ontario Energy Board

Court of Ontario

Superior Court of Justice

Divisional Court

Perell, J.

May 8, 2012.

Summary:

The Ontario Energy Board found that Summitt Energy Management Inc. ("Summitt") had breached the Ontario Energy Board Act. Summitt appealed. As part of its appeal, it brought a motion to submit new evidence. In aid of its motion, it issued summonses to examine Hare, who was a member of the Energy Board panel that decided against Summitt, and Duffy of Stikeman Elliott LLP, which was the Energy Board's external legal counsel. The Energy Board brought a motion to quash the summonses.

The Ontario Divisional Court quashed the summonses.

Administrative Law - Topic 552.1

The hearing and decision - Decisions of the tribunal - Deliberative secrecy - [See first Evidence - Topic 5607].

Administrative Law - Topic 8870

Boards and tribunals - Members - Privilege respecting testimony and production of documents in civil proceedings - [See both Evidence - Topic 5607].

Evidence - Topic 4236

Witnesses - Privilege - Lawyer-client communications - When privilege may be invoked - [See first Evidence - Topic 5607].

Evidence - Topic 5607

Witnesses - Competency and compellability - Compellability - Particular persons - Boards and tribunals - Members and personnel - The Ontario Energy Board found that Summitt Energy Management Inc. ("Summitt") had breached the Ontario Energy Board Act - Summitt appealed - Summitt sought to provide fresh evidence in support of its ground of appeal that there was a reasonable apprehension of bias because: (a) Stikeman Elliott LLP, which was the Energy Board's external counsel, had represented some of Summitt's competitors in other matters; and (b) Stikeman Elliott was a member of the Ontario Energy Association (OEA) and would have been privy to OEA information relevant to Summitt's due diligence defence - In aid of its motion to submit new evidence, Summit issued summonses to examine Hare, a member of the Energy Board panel that decided against Summitt, and Duffy of Stikeman Elliott LLP - The Energy Board moved to quash the summonses, submitting that: (1) the evidence to be adduced was irrelevant to Summitt's allegation of a reasonable apprehension of bias; (2) the summonses infringed the absolute testimonial immunity granted by s. 10 of the Ontario Energy Board Act to Board members and employees of the Board; (3) the summonses infringed the principle of deliberative secrecy; and (4) the summonses infringed solicitor-client privilege - The Ontario Divisional Court quashed the summonses - The evidence being sought pursuant to the summonses was irrelevant and, therefore, both summonses should be quashed - The court also held that Hare had testimonial immunity under s. 10 of the Ontario Energy Board Act, but Duffy did not - Further, Hare had testimonial immunity under the doctrine of deliberative secrecy, but Duffy did not with respect to being asked Competitor Representation Questions, OEA Involvement Questions, and Other Proceedings Questions - Deliberative secrecy would immunize Duffy only from questioning about Retainer Questions - For the analysis of solicitor-client privilege, the court stated that "I foreshadow to say the answer is: (1) yes with respect to the Retainer Questions; (2) subject to some instances of waiver, yes with respect to the Competitor Representation Questions and the Other Proceedings Questions; and (3) no with respect to the OEA Involvement Questions" - The result was that there were four reasons to quash Hare's summons and one reason to quash Duffy's summons.

Evidence - Topic 5607

Witnesses - Competency and compellability - Compellability - Particular persons - Boards and tribunals - Members and personnel - Section 10 of the Ontario Energy Board Act provided that "Members of the Board and employees of the Board are not required to give testimony in any civil proceeding with regard to information obtained in the discharge of their official duties" - The Ontario Divisional Court stated that "As a matter of giving s. 10 a purposively interpretation, it is not necessary to include external legal counsel as 'employees' because solicitor-client privilege, ... would immunize external counsel from giving testimony with regard to information obtained in providing legal service to the Energy Board" - If the Legislature had intended to include external counsel within s. 10 of the Act, it would have done so expressly - Giving "employee" its everyday ordinary meaning, external counsel were not employees whose work performance was controlled by the employer - See paragraphs 71 to 72.

Words and Phrases

Employee - The Ontario Divisional Court held that "employee" in s. 10 of the Ontario Energy Board Act, S.O. 1998, c. 1, did not include external counsel - See paragraphs 71 to 72.

Cases Noticed:

Canada Metal Co. et al. v. Heap et al. (1975), 7 O.R.(2d) 185 (C.A.), refd to. [para. 47].

Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. et al. (1995), 27 O.R.(3d) 291 (Gen. Div.), refd to. [para. 47].

Fehringer v. Sun Media Corp. et al., [2001] O.T.C. 527; 54 O.R.(3d) 31 (Sup. Ct.), refd to. [para. 47].

Ontario (Attorney General) v. Dieleman (1993), 16 O.R.(3d) 39 (Gen. Div.), refd to. [para. 47].

René v. Carling Export Brewing & Malting Co. (1927), 61 O.L.R. 495 (S.C.), refd to. [para. 48].

Agnew v. Ontario Association of Architects (1987), 26 O.A.C. 354; 64 O.R.(2d) 8 (Div. Ct.), refd to. [para. 48].

Ontario Federation of Anglers & Hunters et al. v. Ontario (Minister of Natural Resources) et al. (2002), 158 O.A.C. 255 (C.A.), leave to appeal denied (2003), 313 N.R. 198; 181 O.A.C. 198 (S.C.C.), refd to. [para. 49].

Manulife Securities International Ltd. v. Société Générale et al., [2008] O.T.C. Uned. 629; 90 O.R.(3d) 376 (Sup. Ct.), leave to appeal denied [2008] O.A.C. Uned. 257 (Div. Ct.), refd to. [para. 50].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 52].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 52].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 52].

Chippewas of Mnjikaning First Nation v. Ontario et al. (2010), 265 O.A.C. 247; 2010 ONCA 47, refd to. [para. 53].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 54].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 54].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) (1994), 68 O.A.C. 216; 16 O.R.(3d) 698 (Div. Ct.), refd to. [para. 65].

Glengarry Memorial Hospital v. Pay Equity Hearings Tribunal (Ont.) et al. (1993), 60 O.A.C. 161; 99 D.L.R.(4th) 682 (Div. Ct.), varied (1993), 99 D.L.R.(4th) 706 (Div. Ct.), refd to. [para. 70].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 70].

Clendenning and Board of Police Commissioners for the City of Belleville, Re (1976), 75 D.L.R.(3d) 33; 15 O.R.(2d) 97 (Div. Ct.), refd to. [para. 76].

156621 Canada Ltd. v. Ottawa (City) et al., [2004] O.T.C. 232; 70 O.R.(3d) 291 (Sup. Ct.), refd to. [para. 76].

Rudinskas v. College of Physicians and Surgeons (Ont.) (2011), 285 O.A.C. 218; 2011 ONSC 4819 (Div. Ct.), refd to. [para. 78].

Aronov v. Royal College of Dental Surgeons (Can.), [2001] O.J. No. 1927 (Div. Ct.), refd to. [para. 78].

Stevens v. Canada (Attorney General) (2003), 241 F.T.R. 108; 2003 FC 1259, refd to. [para. 78].

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) et al. (2007), 253 N.S.R.(2d) 134; 807 A.P.R. 134; 282 D.L.R.(4th) 538; 2007 NSCA 37, refd to. [para. 79].

Tremblay v. Commission des affaires sociales et autre, [1992] 1 S.C.R. 952; 136 N.R. 5; 47 Q.A.C. 169, refd to. [para. 79].

Payne v. Human Rights Commission (Ont.) (2000), 136 O.A.C. 357; 192 D.L.R.(4th) 315 (C.A.), refd to. [para. 81].

Société d'énergie Foster Wheeler ltée v. Sociéte intermunicipale de gestion et d'élimination des déchets (SIGED) Inc., [2004] 1 S.C.R. 456; 318 N.R. 111; 2004 SCC 18, refd to. [para. 88].

Pritchard v. Human Rights Commission (Ont.) et al., [2004] 1 S.C.R. 809; 319 N.R. 322; 187 O.A.C. 1; 2004 SCC 31, refd to. [para. 89].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 2002 SCC 61, refd to. [para. 90].

Minister of National Revenue v. Welton Parent Inc., [2006] 2 C.T.C. 177, refd to. [para. 90].

Statutes Noticed:

Ontario Energy Board Act, S.O. 1998, c. 1, sect. 10 [para. 64].

Counsel:

William J. Burden and Linda I. Knol, for the appellant, Summitt Energy Management Inc.;

Mahmud Jamal and Raphael T. Eghan, for the respondent, Ontario Energy Board;

M. Philip Tunley, for the respondent, the Ontario Energy Board (Compliance Counsel);

Arif Virani, for the intervenor, The Attorney General of Ontario.

This motion was heard on April 24, 2012, before Perell, J., of the Ontario Divisional Court, who delivered the following decision on May 8, 2012.