Citation: Saturley v. CIBC World Markets Inc., 2011 NSSC 4
Date: 20110107
Docket: Hfx No. 305635
Registry: Halifax
Fredrick Thomas Saturley Plaintiff
and
CIBC World Markets Inc. Defendant
DECISION on PRODUCTIONS
Judge: The Honourable Justice Gerald R. P. Moir
Date of Hearing: No hearing was held
Date of Last Written Submissions: December 7, 2010
Counsel: George MacDonald, Q.C. and
Jack Graham, Q.C., for plaintiff
Michael S. Ryan, Q.C. and John A. Keith, for defendant
Moir, J.:
Introduction
[1] Mr. Saturley was an investment adviser at CIBC World Markets. In October, 2008 an error, for which CIBC was responsible, was made in calculating margins on certain options accounts. The error cost Mr. Saturley's clients millions of dollars, and CIBC reversed numerous transactions at its cost.
[2] When the error was under investigation, CIBC uncovered information that it claims showed Mr. Saturley engaged in unauthorized discretionary trading.
[3] Early in December, 2008 CIBC terminated Mr. Saturley's employment without notice. Mr. Saturley sued in wrongful dismissal and intentional interference with economic relations. CIBC defended on the basis that the termination was justified by Mr. Saturley's unauthorized trades.
[4] In connection with his claim for damages, and the alleged intentional interference with economic relations, Mr. Saturley alleges that the CIBC's handling of complaints about the calculation error, the conduct of the investigation, related communications, and the dismissal harmed Mr. Saturley's professional reputation. He claims that CIBC attempted "to disguise the EEM calculation error" and that this "impaired his ability to maintain his trust relationships with and service his clients, to mitigate his damages, to obtain alternative employment, and maintain his reputation in the industry." It is evident that he will attempt to prove at trial that, for a time, CIBC portrayed the calculation error as being Mr. Saturley's fault.
[5] Mr. Saturley demanded production of all paper documents and electronic information concerning the error between CIBC and the firm that made the margin calculations. CIBC refused on the ground that the communications are irrelevant.
[6] CIBC demanded production of all paper documents and electronic information recording communications by Mr. Saturley with the affected clients after his dismissal. Mr. Saturley refused on the ground that the communications are irrelevant.
Issues
[7] I have to determine whether to order production of the communications about the calculation error between CIBC and ADP, the firm that made the error, and whether to order production of Mr. Saturley's communications with former clients after his termination.
Principles for Production
[8] Mr. MacDonald submits that "While Rule 14.01 changed the definition of relevance, it did not change the approach to be taken when making the determination of relevance." He relies on the decisions of Justice LeBlanc in Halifax Dartmouth Bridge Commission v. Walter Construction Corp., 2009 NSSC 403 and Humphrey v. Portage La Prairie Mutual Insurance Co., 2009 NSSC 153.
[9] As I see it, the definition of "relevant" in the 2008 Civil Procedure Rules fundamentally altered the approach to be taken by counsel and the court when a question about relevancy arises in the disclosure of documents or the discovery of witnesses.
[10] I shall discuss the legislative history behind Rule 14.01, then I shall turn to interpretations of the Rule offered by Justice LeBlanc, then I shall discuss the text against the legislative background and the interpretations. Some propositions and principles emerge fairly clearly from these sources, and I shall close the discussion with a summary of them.
[11] Pre-trial disclosure of documents and discovery of witnesses are covered by Part 5 - Disclosure and Discovery of the Nova Scotia Civil Procedure Rules. As in other Canadian jurisdictions, and unlike some American civil procedures, the disclosing party must be active when it comes to disclosure of documents, where the inquiring party is active for discovery of witnesses. For this reason, it is technically incorrect to refer in Nova Scotia to discovery of documents or discovery of electronic information. That said, the entire field is enlightened by the same fundamental principle.
[12] The principle that enlightens disclosure and discovery generally is that full disclosure of relevant information is "necessary for justice": Rule 14.08(1). An exception is made for privileged information: Rule 14.05. Within defined confines, proportionality may limit the content or mode of disclosure: Rule 14.08(3) and Rule 2.03(1). It was said of the Nova Scotia Civil Procedure Rules (1972), and it may still be said of the Rules that replaced them in 2008, that the limits on disclosure and discovery are narrow.
[13] In light of the principle that full disclosure is necessary for justice, a party is required to become informed about, search for, and disclose relevant documents or electronic information in the party's control: Rules 15.02 and 16.03. These obligations are, as I said, automatic. On discovery of witnesses, where the party seeking disclosure must become active, the party is armed with a powerful investigative tool. Not only is the party entitled to obtain, by discovery question or interrogatory, "relevant evidence", but also "information that is likely to lead to relevant evidence". Again, that which was found in the 1972 Rules continues.
[14] The mechanisms may be more refined, especially for electronic information, and the relation between full disclosure of relevant information and justice is expressly recognized, but the requirement for full disclosure of relevant information under the 2008 Rules repeats that which was first embraced by the 1972 Rules.
[15] However, no one suggests that demands for, or production of, irrelevant information furthers the ends of justice in any way. In that regard, the 2008 Rules come to grips with a very serious problem not foreseen in 1972.
[16] Since the late nineteenth century, judges had expressed the view that "relevance" should have a relaxed meaning outside trial. It was more difficult in a pre-trial setting for judges to correctly determine relevancy and so a "semblance of relevance" would do: The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano (1882), 11 Q.B. 55.
[17] The first reference to "semblance of relevancy" in Nova Scotia judgments appears to be the decision of Justice Davison in Eastern Canadian Coal Gas Venture Ltd. v. Cape Breton Development Corp., [1994] N.S.J. 588 (S.C.) affirmed by [1995] N.S.J. 177 (C.A.). In Roadside Fisheries Ltd. v. Canadian General Surety Co., [1996] N.S.J. 506, Justice Kelly attributed the principle of disclosure by semblance of relevancy to Justice MacAdam's decision in McCrea v. Canada Newspapers Co., [1993] N.S.J. 239 (S.C.), which applied Upham v. You, [1986] N.S.J. 191 (C.A.). Although neither Justice MacAdam nor the Court of Appeal used the expression "semblance of relevancy", these decisions adopt a similar concept.
[18] In Eastern Canadian Coal Gas Venture, Justice Davison wrote at para. 20, "...a chambers judge must look to see if on the pleadings and the evidence, documents have a 'semblance of relevance'." By the beginning of this century it was settled law in Nova Scotia, and elsewhere, that each party's disclosure obligations extended to documents, electronic information, and other information that had a semblance of relevance to the issues.
[19] The most serious problem with modern civil justice is its cost. Those who recognized this, and advocate reform, could not ignore the cost of the Peruvian Guano test. Mr. Keith referred me to this passage from Lord Woolf's "Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales" (HMSO, London, 1995) at p. 167:
The result of the Peruvian Guano decision was to make virtually unlimited the range of potentially relevant (and therefore discoverable) documents, which parties and their lawyers are obliged to review and list, and which the other side is obliged to read, against the knowledge that only a handful of such documents will affect the outcome of the case. In that sense, it is a monumentally inefficient process, especially in the larger cases. The more conscientiously it is carried out, the more inefficient it is.
[20] Some jurisdictions reformed the semblance of relevancy test as part of the efforts in the last ten or twenty years to address the cost of civil litigation as an impediment to justice. See, for example, U.K. Civil Procedure Rule 31.6.
[21] An effort to revise the Nova Scotia Civil Procedure Rules (1972) and to institute some needed reforms began in 2002 with appointments by the judiciary, the provincial government, and the Nova Scotia Barristers' Society of members to a "Rules Reform and Revision Project Steering Committee". Justice Davison was the Chair. The Steering Committee was assisted by the Nova Scotia Law Reform Commission, by various processes for broad consultation, and by eight working groups made up of judges and lawyers experienced in civil litigation. The question of reforming the semblance of relevancy test fell to the Discovery and Disclosure Working Group. Justice Davison was also the Chair of that body.
[22] The author of Eastern Canadian Coal Gas Venture reported for his Discovery and Disclosure Working Group as follows:
There was the complaint of some lawyers in our consultation meetings, by correspondence and by general comments during discussions that the term "semblance of relevance" placed a burden on parties which rendered excessive expense and the waste of considerable time searching for documents which met the test. It was agreed that "semblance of relevance" test, which the Nova Scotia Court of Appeal accepted, should be narrowed.
Final Report of the Discovery and Disclosure Working Group (Steering Committee, May 24, 2005) at p. 4 and 5.
[23] The Working Group also decided that the policy of narrowing the scope of disclosure should be left to "the drafting stage when 'relevant' may be defined": Final Report, p. 7.
[24] Rule 14.01(1) is to be understood against that background of legislative history: gradual adoption of the nineteenth century "semblance of relevancy" test on the basis that it is too difficult for lawyers and judges to determine relevancy in the pre-trial stage; recognition that the test lead to wasteful expense and, thus, impeded justice, and; for Nova Scotia, the recommendation of a solution through a definition of "relevant" for the purposes of disclosure and discovery.
[25] Rule 14.01(1) defines "relevant" for Part 5. It is unique in our rules of court because it couples a definition with mandatory directions to judges. The Rule reads:
In this Part, “relevant” and “relevancy” have the same meaning as at the trial of an action or on the hearing of an application and, for greater clarity, both of the following apply on a determination of relevancy under this Part:
(a) a judge who determines the relevancy of a document, electronic information, or other thing sought to be disclosed or produced must make the determination by assessing whether a judge presiding at the trial or hearing of the proceeding would find the document, electronic information, or other thing relevant or irrelevant;
(b) a judge who determines the relevancy of information called for by a question asked in accordance with this Part 5 must make the determination by assessing whether a judge presiding at the trial or hearing of the proceeding would find the information relevant or irrelevant.
Rule 14.01(2) provides that an interlocutory ruling on relevance under Part 5 is not binding at trial, or on the hearing of an application.
[26] Justice LeBlanc had to interpret Rule 14.01(1) in two reported decisions.
[27] Halifax Dartmouth Bridge Commission v. Walter Construction Corp., [2009] N.S.J. 640 (S.C.) is about claims for a failure in surfacing of the Angus L. MacDonald Bridge after a new lane was added. A manufacturer of the surfacing materials and provider of related technology denied liability on the basis that the Bridge Commission failed to advise suppliers of various movements of the span. The manufacturer demanded that the Commission produce documents about the repair of the surface and "all subsequent services...until the present date" (para. 1).
[28] The Commission's objection appears to have been that the information sought is not relevant without some proof that the failure resulted from movements of the span rather than from defects in the materials, technology, or application. See, para. 19.
[29] Justice LeBlanc referred to the establishment of the semblance of relevancy test, but he observed: "The 2009 Civil Procedure Rules, however, impose a more stringent threshold of 'relevancy' at the pre-trial stage." (para. 13). He set out Rule 14.01 and concluded "This rule provides that relevancy is to be determined on the threshold of relevancy at trial." (para. 15).
[30] Justice LeBlanc then considered the requirement, in Rule 18.13(2), that a witness at discovery provide relevant documents and "information that is likely to lead to relevant evidence". He said "the Rule does not specify the meaning of 'likely to lead to relevant evidence' and whether this is a different threshold than 'semblance of relevancy'." (para. 15). He went on to say, at para. 16:
I am of the view that the object of the rule is to make available information and documents that are likely to lead to relevant evidence at trial, which I take to mean that the information will probably lead to relevant evidence at trial. The key feature of the current rule is that the evidence has to be relevant to an issue at trial. It is important, however, to be mindful that at the pre‑trial stage, the parties are still investigating the claim to determine whether there is a basis to defend. Consequently, at discovery, witnesses can be examined both as to relevant evidence and also for information that is likely to lead to relevant evidence. Similarly, witnesses could be examined on documents that are relevant and also on documents that are likely to lead to relevant evidence.
[31] The documents were ordered to be produced "in fairness and in view of the above principles": para. 21. "To quote Justice Hallett, 'there are very narrow limits within which a document will not be ordered to be produced' ": also, para. 21.
[32] Murphy v. Lawton's Drug Stores Ltd., [2010] N.S.J. 409 (S.C.) is about injuries from a slip and fall. At discovery, an employer of the defendant testified that it kept maintenance and inspection logs. The plaintiff requested copies of the logs for six months before and six months after the fall.
[33] Justice LeBlanc pointed out "Whereas the 1972 Rules provided for production of documents related to any matter in the proceeding, the 2009 Rule limits production to documents that would be relevant to an issue at trial." (para. 11). He explains at para. 10:
The defendant also refers to comments by the courts as to the purpose underlying the changes in the Civil Procedure Rules. The changes reflected the need to reduce the expense of litigation and to thereby improve access to justice. I agree the current Rule was intended to limit the effort and expense involved in pre‑trial procedures, including discovery and production of documents.
[34] Justice LeBlanc makes an important distinction when he discusses his earlier decision in Halifax Dartmouth Bridge Commission. He says at para. 12 of Murphy v. Lawton's Drug Stores:
Some caution is necessary in applying that decision, as it was substantially argued under Rule 18 (Discovery) and the additional phrase "likely to lead to relevant evidence" was considered in that context. However, the essential statement that Rule 15 permits a less expansive scope of documentary disclosure than Rule 20.01 formerly did remains valid.
[35] The distinction is important because an implication could be taken from para. 15 of Justice LeBlanc's earlier decision that the various opportunities provided in Part 5 for discovery of information "likely to lead to relevant evidence" colour the meaning of "relevant".
[36] As I said, the right to discovery of information that is likely to lead to relevant evidence is a powerful investigative tool. The investigative tool does not inform the meaning of relevant. The situation is the opposite. Rule 14.01(1) provides the meaning of "relevant" in the Rules in Part 5 that use that phrase: Rules 14.12(3)(h), 16.12(3)(e), 18.13(1) and (2), 18.17(5)(a), 18.18(1)(b), 19.03, 19.05(1)(f), 19.07(2)(a) and, 21.06(1)(a). The object of the inquiry must be likely to lead to evidence that is relevant at trial.
[37] Justice LeBlanc determined that the records from before the slip and fall were relevant (para. 41), but that he did not have evidence that could support a finding that those made after the fall are relevant (para. 42) and, so, he refused to order production. Both his reasoning, and his refusal to order production of the post-accident maintenance records, show that Justice LeBlanc squarely rejected a relaxed meaning for "relevancy".
[38] With the legislative history and the interpretations offered by Justice LeBlanc in mind, let us return to the text of Rule 14.01(1).
[39] Alone among all the Rules, it uses the doubtful device "for greater clarity". By this device the definition defines "relevant" and combines the definition with mandatory directions to judges who determine relevancy for disclosure or for discovery: respectively 14.01(1)(a) and 14.01(1)(b).
[40] The definition simply incorporates the ordinary meaning of relevance in evidence law, a meaning which is discussed at length in both of Justice LeBlanc's decisions. Thus, the definition excludes "semblance of relevancy" or any other watered-down meaning.
[41] As if the definition were insufficient, 14.01(1)(a) and (b) direct judges who determine issues of relevancy under Part 5 to assess "whether a judge presiding at the trial or hearing of the proceeding would find the [subject] relevant or irrelevant". The provisions are mandatory, "a judge who determines...must make the determination by assessing". The judge has no discretion: Rule 2.03(3)(a).
[42] The semblance of relevancy approach was premised on the proposition that it is too difficult to determine relevancy in a pre-trial context, too difficult without the contextualizing assistance of the trial. So, Rule 14.01(1) undermines that premise and directs judges to do that which was earlier thought to be too difficult.
[43] Since "the current Rule was intended to limit the effort and expense involved in pre-trial procedures" (Murphy, para. 10) and since it requires judges to do something that used to be considered too difficult, the Rule marks a departure from a kind of practice that may have been tolerated before. As Mr. Keith points out, the requirements for greater precision in pleadings found in Rule 38.02 mark the same departure. The cost of litigation demands that litigants enter a proceeding, make disclosure, undertake discovery, and otherwise move to trial with as precise a notion of their claim or defence as is possible.
[44] The departure rejects an approach under which, when disclosure is made and discovery is undertaken, "the issues will still be poorly defined", to use Professor Thompson's phrase as quoted in para. 13 of Murphy. The serious problem of the cost of civil litigation demands a more rigorous approach than that taken by a party who chooses to sue or defend, let alone to undertake discovery, with a poorly defined concept of his claim or defence.
[45] As I read Rule 14.01(1), counsel who are deciding whether to make an issue about the relevancy of something for disclosure, or at discovery, must do their best to put themselves at the vantage they will have at the beginning of the trial. And, when the issue goes to chambers, counsel will have to do their best to give the chambers judge the vantage the trial judge would have at the beginning of the trial. And, the chambers judge must make a ruling from that vantage, imperfectly constructed though it may be.
[46] This examination of the legislative history, the recent jurisprudence, and the text of Rule 14.01 leads to the following conclusions:
· The semblance of relevancy test for disclosure and discovery has been abolished.
· The underlying reasoning, that it is too difficult to assess relevancy before trial, has been replaced by a requirement that judges do just that. Chambers judges are required to assess relevancy from the vantage of a trial, as best as it can be constructed.
· The determination of relevancy for disclosure of relevant documents, discovery of relevant evidence, or discovery of information likely to lead to relevant evidence must be made according to the meaning of relevance in evidence law generally. The Rule does not permit a watered-down version.
· Just as at trial, the determination is made on the pleadings and evidence known to the judge when the ruling is made.
In my opinion, these conclusions follow from, and are enlightened by, the principle that disclosure of relevant, rather than irrelevant, information is fundamental to justice and the recognition that an overly broad requirement worked injustices in the past.
[47] In my opinion, these conclusions do not suggest a retreat from the broad or liberal approach to disclosure and discovery of relevant information that has prevailed in this province since 1972.
Communications with ADP Broadridge
[48] ADP calculated margin for CIBC and reported its conclusions each day to CIBC World Markets, its clients, and investment advisors.
[49] Mr. Saturley and most of his clients were involved in sophisticated options trading. They followed an approved investment strategy under which they drew on margin calculated by reference to the "Emerging Markets Index".
[50] Between July and October of 2008, ADP calculated this margin incorrectly. Mr. Saturley discovered the error, and he reported it to management. This happened at a time when the market was falling, and the investors lost a great deal of money because of the error and the fall.
[51] The CIBC put together a group to work on the problem. Members of the group had communications with ADP.
[52] Shortly after the error was discovered, Mr. Saturley was instructed not to communicate with his clients about it. He was sent home on sick leave. Two months later, he was fired. Less than a month later, CIBC World Markets reversed transactions made under the miscalculated margin at a cost to CIBC of some twenty-eight million dollars.
[53] As I said, Mr. Saturley alleges wrongful dismissal and intentional interference with economic relations. He alleges that CIBC tarnished his reputation, including by disguising the calculation error.
[54] The Halifax branch manager of CIBC World Markets, Mr. Per Humle, was discovered by Mr. Graham. Mr. Humle was of the view that Mr. Saturley had been aware of the margin error for a time before he chose to report it to management. His motive would have been "better returns for clients due to the extra leverage."
[55] Mr. Humle held his opinion with certainty, and he reported it to senior management. He was told by a senior official that it could not be proven, CIBC could not be certain about it, and it was not something that could be considered in reference to the question of terminating Mr. Saturley's employment.
[56] Initially, Mr. Humle was instructed to remain mum about the calculation error. Later, he told clients who asked that the error was not Mr. Saturley's fault. However, if pressed he expressed his personal view that Saturley knew about the error. Some others at CIBC expressed a similar view.
[57] Mr. Graham requested to know whether ADP indemnified CIBC, and he requested production of "all information confirming their acceptance of responsibility".
[58] Further requests were made by Mr. MacDonald during the discovery of Ms. Wilma Ditchfield. He requested to be informed whether CIBC advanced a claim against ADP and about the timing of early communications with ADP about the error. He requested production of certain e-mails.
[59] The motion is more broadly framed. It is for production of all paper or electronic communications between CIBC and ADP about the error.
[60] The case for relevance begins with the observation that the plaintiff's claims start with and arise from the calculation error. That is so.
[61] "[T]he Margin was incorrectly calculated...". There is no question about that. "[T]he Plaintiff advised clients on inaccurate information." Proof of such a fact would be within the pleadings.
[62] In view of the exposure, "the Defendant [took] measures to isolate [Mr. Saturley] from his clients which adversely affected his client relationships and promoted the perception he had engaged in some misconduct." Proof of that is within the pleadings.
[63] So, it follows that:
The discovery of the error, the impact it had on the Plaintiff's management of his clients, the handling of the error by the Defendant and communications with the clients about the error are all central to the Plaintiff's claim.
For his client, Mr. MacDonald adds that CIBC's handling of the error and its communications caused complaints that led to an unwarranted conclusion about discretionary trading.
[64] The first problem with the case for relevance of ADP communications is that the starting point is admitted. CIBC World Markets admits the calculation error, and exactly how and when it was made by CIBC's contractor. It admits that ADP confirmed the error to CIBC shortly after Mr. Saturley sounded the alarm.
[65] The second problem is that the claim has nothing to do with ADP. CIBC World Markets does not allege, and it would be hard pressed in light of its pleadings and representations to seek leave to allege, that Mr. Saturley bears any responsibility for the calculation error. We would be taken by surprise at trial if CIBC World Markets were to submit that Mr. Humle's personal opinion about Mr. Saturley's knowledge of the error should be found as fact.
[66] The "discovery of the error" is mostly admitted. The "impact it had on the Plaintiff's management of his clients", "the handling of the error by the Defendant", and "communications with the clients about the error" are important facts in issue, but they have nothing to do with ADP.
[67] With two reservations, I accept Mr. Keith's submission:
Beyond that [information provided without admitting relevance], CIBC WM disputes that the information broadly requested is relevant. The parties agree that CIBC WM confirmed the ADP error shortly after Saturley disclosed it to CIBC WM. The history of communications between CIBC WM and Saturley's clients has been disclosed, and it is clear that ADP was never involved in any of these communications in any event.
Any additional communications between ADP and CIBC WM are, respectfully, entirely irrelevant and cannot lead to relevant evidence.
My reservations have to do with narrow scopes of information that may be within that broadly requested.
[68] Firstly, I believe that the request recorded as number 14 in the summary of requests from Ms. Ditchfield's discovery of March 24, 2010 has been satisfied. If I am mistaken and if more exists, I would order CIBC World Markets to disclose all e-mails from ADP showing exactly when it confirmed the error and what it said in confirmation.
[69] Secondly, I presume there are no electronic or print documents between CIBC World Markets and ADP in which either discusses Mr. Saturley or his conduct. I would order production of that, if it exists.
[70] In all other respects, the plaintiff's motion for production of ADP records is dismissed.
Saturley's Communications with Clients
[71] CIBC World Markets demanded copies of records of communications between Mr. Saturley and his former clients from October, 2008 onward. Mr. Keith said "the relevance relates, in part, to ongoing relationships with former clients." Documents to December 3, 2008, the date of termination, have been produced.
[72] On behalf of Mr. Saturley, Mr. MacDonald refused to produce records generated after termination.
Any ongoing relationship Mr. Saturley has maintained with his clients has no bearing on whether CIBC had just cause to terminate his employment on December 3, 2008. Nor is it relevant to CIBC's allegation of discretionary trading.
CIBC moves for production of all records of communications with former clients since the dismissal.
[73] The production is not sought on the basis that it is relevant to the allegation of just cause. Rather, it relates to allegations made in the statement of claim that CIBC damaged Mr. Saturley's reputation. Those allegations pertain to both the alleged economic tort and to the claim for damages for both pleaded causes. Alternatively, the production is sought on the basis that it goes to mitigation.
[74] The statement of claim makes an issue of fact out of CIBC's behaviour before termination, in alleging that the isolation of Mr. Saturley from his clients and a contemporaneous delay in communicating the true facts about the calculation error damaged his reputation. Mr. MacDonald submits that this issue is restricted to the period before termination.
[75] Mr. MacDonald also makes the point that the requested production would include information about the personal business of those clients who rejoined Mr. Saturley after he was permitted to open his own firm. He advises that Mr. Saturley's former client base included about two hundred households, some 137 of whom employed the strategy at issue. Mr. Saturley now has fifty-three client households.
[76] Mr. MacDonald argues that the fact that a portion of Mr. Saturley's clients remained loyal does not prove his reputation remained intact:
The communications between the Plaintiff and his former clients are simply not relevant to whether the Defendant's conduct did or did not damage the Plaintiff's reputation. One's reputation is both internal and external. Any communications the Plaintiff had with former clients cannot possibly provide proof of whether his reputation was affected. Furthermore, damage to reputation cannot be measured in numbers. Therefore it is entirely irrelevant whether some clients have continued to hold positive regard for the Plaintiff.
[77] Finally, Mr. MacDonald argues that the request is overly broad, and he says that otherwise Mr. Saturley would also be entitled to disclosure of all communications between CIBC and the clients.
[78] The evidence about Mr. Saturley's allegations of damaged reputation cannot be confined within the period in which Mr. Saturley says the CIBC defamed him. His allegation is that he suffers from the defamation down to this day and into the future. Evidence of the affect of the alleged damage down to the day of trial and into the future is relevant.
[79] For the same reason, the evidence is relevant to mitigation. On that subject, relevancy is exactly the same. It is the other side of the same coin as relevancy to prove the extent of loss.
[80] Proof that a portion of Mr. Saturley's clients remained loyal will go to the extent of losses caused by the alleged damage to reputation. That is not to say that damage to reputation is numerically quantifiable, but it is to say that triers of fact in cases in which damage to reputation is found still have to assess damages. Therefore, evidence going to the extent of the damage is relevant.
[81] However, the request for all records of communications with former clients is overly broad.
[82] Proof of Mr. Saturley's efforts to defend his reputation and of the responses of former clients are relevant to establishing the extent of any damage and of mitigation. That would include any explanations given by Mr. Saturley to former clients about the calculation error, the alleged discretionary trading, and the reasons for his departure. It would include his efforts to retain the business of former clients. It would include the clients' responses to the explanations and efforts. It would include approaches from those clients who wanted to remain loyal and who took the active role in re-establishing a business relationship. It would include evidence about those clients who chose not to be loyal, or who discharged Mr. Saturley after having chosen to re-establish a business relationship.
[83] Beyond those parametres, the communications between Mr. Saturley and former clients will not serve to establish or disprove any fact in issue. In particular, business dealings of clients after they chose to re-establish a relationship are irrelevant.
[84] I am prepared to order production of records of communications that fall within these parametres, and not beyond them. Clarification will be available in response to specific descriptions of print or electronic documents that do not clearly fall to one side or the other of these parametres.
Conclusion
[85] I will only order production of communications between CIBC World Markets and ADP Broadridge to the extent that there may be undisclosed communications pinpointing when CIBC received confirmation that ADP made the calculation error and what was said in that connection, or discussing Mr. Saturley or his conduct.
[86] I will order production of communications between Mr. Saturley and the former clients only within the parametres described earlier.
[87] We can deal with costs after trial.
J.