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File No. EB-2010-0184 ONTARIO ENERGY BOARD IN THE MATTER OF the Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Schedule B; AND IN THE MATTER OF a motion by the Consumers Council of Canada and Aubrey LeBlanc in relation to section 26.1 of the Ontario Energy Board Act, 1998 and Ontario Regulation 66/10. ________________________________________________________________________ BOOK OF AUTHORITIES OF THE INTERVENOR, THE ATTORNEY GENERAL OF ONTARIO ON THE MOTION FOR PRODUCTION OF DOCUMENTS (Returnable April 21, 2011) VOLUME II of II (Tabs 26 to 51) ________________________________________________________________________ April 14, 2011 Ministry of the Attorney General of Ontario Constitutional Law Branch 720 Bay Street, 4th Floor Toronto, Ontario M7A 2S9 Robert E. Charney (LSUC #23652S) Tel: 416-326-4452 [email protected] Arif Virani (LSUC #44463H) Tel: 416-326-0131 [email protected] Fax: 416-326-4015 Counsel for the Intervenor, The Attorney General of Ontario TO: ONTARIO ENERGY BOARD Attention: Kirsten Walli, Board Secretary Suite 2701 – 2300 Yonge Street Toronto, ON M4P 1E4 Fax: 416-440-7656 AND TO: WEIRFOULDS LLP Barristers & Solicitors Suite 1600, Exchange Tower 130 King Street West Toronto, ON M5X 1J5 Robert B. Warren Tel: 416-365-1110 Fax: 416-365-1876 Solicitor for the Moving Parties AND TO: Intervenors of Record INDEX VOLUME I 1. Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources) (2002), 211 D.L.R. (4th) 741 (Ont. C.A.) 2. Cholakis v. Cholakis, [2000] M.J. No. 6 (Q.B.) 3. Agnew v. New Brunswick Telephone Co., [2002] N.B.R. (2d) (Supp.) No. 53 (Q.B.) 4. Lazin v. Ciba-Geigy Canada Ltd., Jacobs and McClure, [1976] 3 W.W.R. 460 (Alta. C.A.) 5. Westminster Airways Ltd. v. Kuwait Oil Co., [1951] 1 K.B. 134, [1950] 2 All E.R. 596 (C.A.) 6. McKergow v. Comstock, [1906] O.J. No. 320 (Div. Ct.) 7. Hoyt v. Insurance Corp. of British Columbia (2001), 89 B.C.L.R. (3d) 44 (C.A.) 8. Sopinka, Lederman and Bryant: the Law of Evidence in Canada, 3rd ed. (Markham, ON: LexisNexis Canada, 2009) 9. Hopps-King Estate v. Miller, [1998] O. J. No. 5556 (Ont. Master) 10. Apotex Inc. v. Canada, [2005] F.C.J. No. 1021 (C.A.) 11. Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3 S.C.R. 134 12. 620 Connaught Ltd. v. Canada (Attorney General), [2008] 1 S.C.R. 131 13. Confédération des Syndicats Nationaux v. Canada (Attorney General), [2008] 3 S.C.R. 511 14. Eurig Estate (Re), [1998] 2 S.C.R. 565 15. Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783 16. Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567 17. R. v. Oakes, [1986] 1 S.C.R. 103 18. Club Pro Adult Entertainment Inc. v. Ontario (2008), 233 O.A.C. 355 19. RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 20. Le Syndicat national des employés de l'aluminium d'Arvida inc. c. Le Procureur général du Canada, [2003] J.Q. no 15801 (Sup. Ct.) 21. Domus Architects v. Ontario (Ministry of Municipal Affairs and Housing), [2001] OJ No. 3597 (Sup. Ct.) 22. British Columbia Teachers’ Federation v. British Columbia (Attorney General), [2008] B.C.J. No. 2414 (Sup. Ct.) -1- 23. Thorne’s Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106 24. Ontario Black Bear/Ontario Sportsmen and Resource Users Assn. v. Ontario, [2000] O.J. No. 263 (Sup. Ct.) 25. Ontario Teachers’ Federation v. Ontario (Attorney General) (1998), 39 O.R. (3d) 140 (Gen. Div.) VOLUME II 26. Manufacturer’s Life Insurance Co. v. Dofasco Inc., [1989] O.J. No. 1456 (H.C.) [QL] 27. O’Neill v. Canada (Attorney General), [2006] O.J. No. 106 (Sup. Ct.) 28. John Labatt Ltd. v. Molson Breweries, [1994] 1 F.C. 801 (T.D.) 29. Nova Scotia (Attorney General) v. Royal & Sun Alliance Insurance Co. of Canada, [2000] N.S.J. No. 404 (Sup. Ct.) 30. R. v. Ahmad, [2009] O.J. No. 6156 (Sup. Ct.) 31. Mannesman Dematic Rapistan Ltd., [2001] O.L.R.D. No. 2821 (L.R.B.) 32. Bakhtiyari v. British Columbia Institute of Technology, 2006 BCHRT 494 33. North American Trust Co. v. Mercer International Inc. (1999), 71 B.C.L.R. (3d) 72 (Sup. Ct.) 34. McGee v. London Life Insurance Co., [2010] O.J. No. 898 (Sup. Ct.) 35. Araujo v. Jews for Jesus, [2010] O.J. No. 4739 (Sup. Ct.) 36. McDermott v. Rebuck, [2008] B.C.J. No. 1092 (S.C.) 37. Carey v. Ontario, [1986] 2 S.C.R. 637 38. Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3 39. Order PO-2034 (Ministry of Community and Social Services), [2002] O.I.P.C. No. 119; aff’d in Ontario (Ministry of Community and Social Services) v. Ontario (Information and Privacy Commissioner) (2004), 70 O.R. (3d) 680 (Div. Ct.) 40. Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy, vol. 2 (Toronto: Queen’s Printer of Ontario, 1980) 41. Masse et al. v. Ontario (November 8, 1995), Court File No. 590/95 (Div. Ct.) 42. Ontario (Management Board of Cabinet), [1998] O.L.R.D. No. 1598 (L.R.B.) 43. Bedford v. Canada (Attorney General), 2011 ONCA 209 44. General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321(C.A.) -2- 45. Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R 574 46. R. v. Campbell, [1999] 1 S.C.R. 565 47. Telus Communications Inc. v. Canada (Attorney General), 2004 FCA 380 48. Quebec (Attorney General) v. Canada (Attorney General), [2001] F.C.J. No. 198 (C.A.) 49. Xentel DM Inv. v. Schroder Ventures US Fund L.P. 1, [2008] O.J. No. 1788 (Sup. Ct.), leave to appeal ref’d, [2008] O.J. No. 4044 (Div. Ct.) 50. Canada v. Solosky, [1980] 1 S.C.R. 821 51. Globe and Mail v. Canada (Attorney General), [2010] 2 S.C.R. 592 -3- Page 1 Indexed as: Manufacturers Life Insurance Co. v. Dofasco Inc. (Ont. H.C.) Between The Manufacturers Life Insurance Company, North American Life Assurance Company, The Standard Life Assurance Company, National Life Assurance Company of Canada, New York Life Insurance Company, Wellington Insurance Company, Civil Service Superannuation Board, Prudential Assurance Company Limited, Municipal Employees Benefit Board of Manitoba, Co-Operative Superannuation Society, Her Majesty the Queen in the Right of Alberta, Midland Doherty Investment Management Corporation, The Royal Trust Company, Montreal Life Insurance Company, The Laurentian Mutual Insurance, Sun Life Assurance Company of Canada, Ontario Hydro, Sinking Fund Trustees of the City of Winnipeg, Plaintiffs (Appellants), and Dofasco Inc. and National Trust Company, Defendants (Respondents) [1989] O.J. No. 1456 38 C.P.C. (2d) 47 17 A.C.W.S. (3d) 26 Action No. 19604/87 Supreme Court of Ontario - High Court of Justice Toronto, Ontario Montgomery J. Heard: August 3, 1989 Judgment: September 6, 1989 Practice -- Discovery -- Documentary discovery -- Commercially sensitive material not relevant, not producible. These were an appeal and cross-appeal from a master's decision on a motion seeking to compel the defendant to produce certain documents in an unedited form. The plaintiffs held numerous sinking Page 2 fund debentures given by the defendant company. Part of the redemption provisions of these deben- tures stipulated that the defendant was not entitled to redeem the debentures where the cost of bor- rowing to do so was under 17% per annum. The defendant gave notice that it intended to redeem all its debentures outstanding. The plaintiffs alleged that the defendant was intending to borrow to ef- fect the redemption and this was the triable issue. The defendant produced certain financial docu- ments at discovery which were edited. The plaintiffs claimed entitlement to the unedited documents. HELD: The appeal and cross-appeal were determined. The plaintiffs were not entitled to the uned- ited financial documents because the edited portions were not relevant to the issue of whether the defendant was going to borrow. Commercially sensitive information should only be produced where it was clearly relevant. Graham D. Smith, for the Plaintiffs (Appellants). Jeffrey S. Leon, for the Defendants (Respondents). MONTGOMERY J.:-- An appeal and cross-appeal from a decision of the Master determining what questions are proper on discovery is a tedious, boring exercise. If the Master gives no reasons, a careful examination of the relevance of each question must be made. If the Master does give rea- sons, this court should only interfere with the decision where there is a clear error in principle: Mar- leen Investments Ltd. v. McBride et al. (1979), 23 O.R. (2d) 125 (H.C.J.). In the present case the learned Master did not give reasons. The triable issue is whether Dofasco anticipated borrowing to redeem its debentures. The issue on this appeal is whether certain questions asked on discovery are relevant to the triable issue. Background The plaintiffs are all holders of 17% sinking fund debentures (the "Debentures") issued by Do- fasco in April, 1982, and maturing on May 1, 1997. The plaintiffs hold over 40,000,000 of the 60,000,000 Debentures issued. The Debentures were issued at a discount; the effective annual rate of interest is 17.09%. In June, 1986, Dofasco announced that it intended to redeem all outstanding Debentures on Au- gust 15, 1986. On July 10, 1986, formal notice of intention to redeem was given. The Trust Indenture relating to the Debentures, and the Debentures themselves, provided that Do- fasco's right to redeem the Debentures was limited in that it could not redeem the Debentures by "the application, directly or indirectly, of funds obtained through borrowing having an interest cost..
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