BIE Health Products v. AG Canada et al.

Decision 1: Build the procedural-abuse record over 20 months of case management — do not file the motion early

Discovery motions against the federal government are a war of attrition. The temptation is to file early and force compliance. We did the opposite. We worked with Master Haberman’s case management process from May 2013 forward — documenting every AG failure: redactions without explanation, privilege claims without document-by-document support, missing attachments, hearsay-only paralegal evidence on the privilege issue (the AG’s 14-page affidavit by Frank Cinanni devoted only two paragraphs to redactions and privilege).

By the time the motion was actually argued in January 2015, the record showed 20 months of failures by the AG against multiple case management orders. The Master’s December 16, 2014 endorsement made the return date peremptory and her “no adjournment” policy explicit. When the AG sought an adjournment at the hearing, the Master had a record of 20 months of warnings. The remedy followed naturally from the record. This is not a moralistic point — it is procedural mechanics. The longer the AG’s pattern of conduct sits in the case management record without proper response, the harder it becomes to argue that the AG should be given a further chance.

Decision 2: Anchor on the burden of proof for privilege — not on whether the documents are relevant

The AG’s litigation strategy treated the discovery motion as if BIE bore the burden of proving that the redacted documents were not privileged. The natural defensive instinct is to engage on relevance — to argue that BIE has a right to see the documents because they relate to the libel claim. We took a different route.

We anchored on the well-settled principle from Toronto Board of Education Staff Credit Union Ltd. v. Skinner (1984), 46 C.P.C. 292 (Ont. H.C.J.): the party claiming privilege bears the onus of demonstrating it is legally entitled to do so — document-by-document, with a record sufficient for the court (and the opposing party) to assess each claim. Master Haberman adopted that framing directly (paras. 22–24): “A party who relies on a privilege as the basis for having excluded certain documents from the general rules of disclosure has the onus of demonstrating they are legally entitled to do so... A record must be created that addresses each document for the privilege claimed to hold.”

Justice Myers on the appeal confirmed this was not a closely contested point: “The government’s counsel conceded at the hearing of the appeal that she had approached the motion from the opposite perspective. She sought to put the burden upon the respondent to prove that there is no privilege in the documents over which the government claimed privilege.” By keeping the motion narrow on the burden-of-proof point, we converted a complex relevance debate into a straightforward burden-of-proof failure.

Decision 3: On appeal, defend the Master’s underlying findings of fact — do not fight for the precise wholesale-disclosure remedy

The AG’s appeal had three grounds: (i) the Master’s findings on the AG’s failure to prove privilege; (ii) the Master’s wholesale order requiring production of all documents over which privilege had been asserted but not proven; (iii) the Master’s obiter comment about possibly requiring lawyer Boudreau to attend for examination if the AG’s designated witness performed poorly.

The defensive instinct is to fight every ground. We did not. We anchored on (i) and (iii) — the Master’s findings of fact about the AG’s conduct and the toothless obiter. On (ii) — the wholesale-disclosure remedy — we accepted that Justice Myers might fashion a more nuanced remedy. The reasoning: if we insisted on the wholesale order, Justice Myers might have set aside more of the Master’s reasoning to justify it. By accepting that the remedy could be revised, we preserved the substantive findings and let Justice Myers fashion the procedural fix himself.

Justice Myers used s. 134(1) of the Courts of Justice Act to review the approximately 50 disputed documents himself in “about one-half hour of time.” He confirmed all of the redactions and privilege claims were correct — with one exception (a single entry in a redacted memo). The disclosure remedy was modified, but the Master’s underlying findings on AG conduct and the privilege burden were preserved. Justice Myers wrote: “The respondent succeeded on two of the three issues on the appeal” (para. 23). The procedural cost award reflected which side had brought the litigation on itself: $13,000 in costs forthwith, partial indemnity, against the AG.

1. Discovery against a government defendant is a war of attrition. Build the procedural-abuse record through case management; do not file the strike motion early. Government as litigant has resources to drag out discovery and switch positions at the last minute. The strongest discovery remedy comes from a record of accumulated failures — case management orders that the government has failed to comply with, not single-instance grievances. The longer the pattern sits in the record without proper response, the more defensible the eventual remedy becomes.

2. Anchor the privilege fight on the burden of proof — Toronto Board of Education v. Skinner. The party claiming privilege has the onus of demonstrating it is legally entitled to do so. That burden is document-by-document, not category-by-category. Where the government has produced a privilege list without document-by-document support, the burden has not been discharged. The relevance debate is a distraction. Make the government prove its privilege claims; do not engage on whether the documents are relevant to the underlying claim.

3. On appeal, defending the underlying findings is more important than defending every aspect of the remedy. Where the appeal court might fashion a more nuanced remedy than the court below, accept that the remedy can be modified and concentrate on the underlying findings of fact and law. The findings carry forward into the rest of the litigation. The remedy is one snapshot. In BIE Health, Justice Myers preserved every Master finding on AG conduct and privilege burden — while modifying the wholesale-disclosure remedy. The substantive litigation position was preserved and a costs award followed.