Tab 1 - Coburn V Barber 2010 ONSC 3342

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CITATION: Coburn v. Barber et al., 2010 ONSC 3342

COURT FILE NO.: 05-CV-303136
MOTION HEARD: March 2 and 31, 2010
SUPERIOR COURT OF JUSTICE - ONTARIO
2010 ONSC 3342 (CanLII)

RE: Coburn
AND:
Barber et al.
BEFORE: Master Haberman
COUNSEL: Certosimo, M. for the moving parties, defendants

Klippenstein, M. And Alexander, B. for the responding party, plaintiff
HEARD: March 31, 2010
REASONS FOR DECISION
[1] The City of Toronto and related defendants (The City defendants) seek an order setting
aside Notices of Examination and Summons to Witnesses served on each of the seven
individual City defendants (Miller, Hoy, Amin, Griffiths, Ross, Redfearn and MacLeod),
as well as on David Bains, a non-party to the action.
[2] The notices and summons were served by Coburn in the context of her upcoming motion
to have Borden Ladner Gervais (“BLG”) removed as counsel for all City defendants, on
the basis of alleged conflict (the “underlying motion”). In fact, Coburn will ultimately
seek to have each City defendant retain separate counsel.
[3] BLG maintains, among other things, that the underlying motion is premature as no actual
conflict has, as yet, been identified. BLG has undertaken to remove themselves from the
record for all of the parties in the event that an actual conflict emerges. It is early days,
however, so too soon, says BLG, to know if this is a legitimate concern.
[4] The underlying motion was launched only after the City defendants had initiated their
motion to strike portions of the amended statement of claim and to dismiss the action
against several of them. As a result, none of the moving defendants has, as yet, filed a
statement of defence.
[5] Once conflict is asserted, the prudent course is to resolve that issue before moving
forward with an action. As a result, the underlying motion, along with the two motions
that flowed from it, were given priority.
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[6] The fact that the motion to disqualify is being heard before the motion to strike creates an
anomaly. It means that Coburn can rely, in this motion and on the underlying motion, on
a pleading that may not survive in its current form.
[7] Further, in the context of this motion, the City defendants submit that in assessing
whether or not these notices can stand, I must consider whether the ultimate motion they

are meant to support stands a good chance of success. If it doesn’t, their position is that
the underlying motion constitutes an abuse, such that these notices must be quashed. The
City defendants urge me to make a finding that the underlying motion is abusive, before
hearing it on its merits, as part of my reasons here.
[8] Both counsel agree that any comments I may make in regards to the viability of the
underlying motion will not form the basis for a recusal motion. When dealing with the
current motion, I will attempt to decide only what I need to decide, based on the materials
that are currently before me and the submissions that were made at this juncture. As the
underlying motion has not been argued in full, the views I express here as to its viability
are restricted to what was required for the purpose of this motion and these reasons.
The Parties
[9] Coburn launched her suit in December 2005. She sues for wrongful dismissal and
defamation. In addition to a Globe & Mail reporter, its publisher and former editor, she
sues the following City defendants:
• David Miller, the current and outgoing City Mayor;
• Fareed Amin, the former deputy City manager, now retired;
• Shirley Hoy, the City manager;
• Jeffrey Griffiths, the City’s auditor general;
• Brad Ross, the media relations manager for the City;
• Ian Redfearn, a supervisor in the City’s municipal licensing and standards department;
• Colin MacLeod, a supervisor in the same department as Redfearn at the time of these
events, though now retired.
[10] Pursuant to this motion, these defendants seek to set aside notices of examination served
on them, as well as a summons to witness to David Bains. Bains is not a City employee,
nor was he served with this notice of motion. In fact, it is not clear that he has even been
served with a summons as yet.
[11] In my view, the City defendants do not have standing to bring this motion on behalf of
Bains. BLG does not represent him and has no instructions from him. As far as I can
tell, he is not even aware that the City defendants have brought this motion. There is also
no evidence before me to indicate the nature of their interest in the relief they claim,
insofar as it involves Bains. The motion is therefore dismissed vis a vis Bains, without
prejudice. If Bains wishes to challenge the summons as and when it is served on him, he
may certainly do so and the matter will be considered at that time.
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What this action is about
[12] Coburn has filed an amended statement of claim that is unnecessarily long and complex.
The pleading runs on for 47 pages and 224 paragraphs. It is accompanied by schedules
“A” – “H”, which add approximately 18 more pages to the piece. The claim and

schedules contain a considerable amount of evidence rather than simply setting out
material facts, so the package offends Rule 25.06(1). The extensive amount of evidence
pleaded also makes it difficult to distil the essence of the claim.
[13] In a nutshell, the action appears to be one for wrongful dismissal and defamation.
Coburn seeks, among other things, damages for:
• wrongful dismissal from the City;
• defamation (this claim extends to the Globe defendants);
• breach of contract;
• inducement of breach of contract; and
• negligence.
[14] Among the heads of damages claimed are general, aggravated, special and punitive
damages, and the total quantum sought approaches $11 million.
[15] The various claims appear to arise from Coburn’s dismissal of October 5, 2005 from her
position as the City’s Executive Director of Municipal Licensing and Standards Division.
Coburn had been a long term City employee, having served Toronto for 27 years, prior to
her termination.
[16] At the time of the termination and in the context of this litigation, the City claimed to
have ended their relationship with Coburn for cause –they claimed at the time of her
dismissal that she had engaged in misconduct with her co-worker, Joseph Carnavale, the
Director of Investigations, to:
influence, improperly, the process and outcome of the April 2005 Director of
Investigations job call and (that she) improperly participated in or failed to
prevent the hiring or appointment of friends of Carnavale.
[17] This conduct was described as a serious violation of the City’s Conflict of Interest policy,
effectively compromising Coburn’s integrity and that of her Division, thereby
undermining the City’s trust and confidence in her.
[18] Coburn denies that she was in any way involved in these events and asserts that her
dismissal was politically motivated. She claims two separate and distinct sets of factors
that led to the demise of her long-term career:
1. Allegations concerning Redfearn and MacLeod

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[19] Coburn alleges that in mid-July 2005, she was alerted to a series of events that called into
question the conduct of Redfearn and MacLeod, both supervisors who ultimately reported
to her, as well as that of a third supervisor. She claims that the information she received
led her to conclude that their failure to take action where it was warranted endangered the
safety of their staff and undermined the public’s confidence in the work of the department
in the areas of taxi and towing regulation, as it suggested possible corruption of City

staff.
[20] Coburn believed that the improprieties she had learned of were sufficiently serious to
justify the immediate suspension of both supervisors, with pay, pending a full
investigation. She claims, however, that within days of having taken this step, she
became the target of a campaign to undermine her credibility. It began with an
anonymous letter to senior City bureaucrats, accusing her of preferential hiring practices.
The letter also alleged that the supervisors were suspended to make room for Coburn’s
friends.
[21] As a result of these accusations, Coburn, herself, fell under scrutiny, and she was
suspended on September 26, 2005, pending completion of an investigation into her
conduct.
[22] Coburn claims that City staff and officials intentionally leaked details regarding the
investigation to members of the press and that both her dismissal and the public nature of
it were motivated by a desire to condemn her actions regarding the two supervisors and to
make it appear that the Mayor was, in fact, “rooting out corruption and cronyism.”
2. Political pressure requiring the Mayor to set an example
[23] Coburn asserts that these events followed closely on the heels of the release of Justice
Bellamy’s report pertaining to the MFP computer leasing inquiry. The report was, in part,
critical of the City.
[24] In the same time period, the media was suggesting that Joe Pantalone, the mayor’s
deputy, had improperly used his influence to find City positions for members of his
family.
[25] In the context of these events and others, Coburn asserts that the Mayor found himself
under intense pressure to prove that he was “tough on corruption and cronyism”. In
view of the press that the Coburn/Carnavale connection appeared to be attracting, Coburn
asserts that the Mayor made an example of her without checking his facts, and that he
used her dismissal to bolster his public image.
[26] Coburn asserts that her claim raises issues of public importance and public interest and
that it should not be read as simply an action for damages based on wrongful dismissal
and defamation. She relies on her assertions that her treatment was motivated by
political considerations and that:
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This was a politically motivated decision, not based on facts, which was made
because of the public nature of the supposed scandal and the Mayor’s desire to
avoid political embarrassment. The decision (to terminate her employment)
followed a sham “witch hunt” investigation in which Ms. Coburn was provided
no real opportunity to respond to the allegations for which she was ultimately
dismissed.

How we got here
[27] The chronology of events is important in view of the City’s allegations regarding
Coburn’s delay. The statement of claim was issued on December 28, 2005 and amended
on June 27, 2006. The City defendants retained BLG and, on July 13, 2006, BLG served
a notice of intent to defend on behalf of all City defendants, except for Redfearn and
MacLeod. Under cover letter of the same date, BLG advised they expected to be retained
to represent the two supervisors as well, and that they had instructions to bring a motion
to strike the statement of claim. Thus, the City’s motion to strike has been on the table
since July 13, 2006 – that is, for almost four years.
[28] BLG’s efforts to schedule a return date for their motion initially produced no response –
their letters of July 28 and September 18, 2006 went unanswered, so they proceeded
unilaterally to book a full day before a judge for their motion on March 6, 2007 – more
than 3 years ago. They served their motion materials a month before the return date and
still heard nothing from Coburn. On February 28, 2007, BLG served its factum and brief
of authorities.
[29] It was only later that day, more than seven months after the City defendants first
expressed their intention to bring their motion and five months after advising Coburn
when it had been scheduled, that Coburn’s counsel wrote and advised, for the first time,
that Coburn planned to move to disqualify BLG for conflict. As a result, the motion to
strike, scheduled to be heard less than a week later, was adjourned.
[30] The letter from Coburn’s counsel is important. He states:
Even if all your clients consented to you being represented by the same lawyer
or firm, such joint representation would inhibit the proper hearing of the public
interest issues inherent in this litigation. (emphasis added)
[31] This comment suggests that for Coburn, whether or not the individual defendants
consented to the current arrangement regarding their representation, would not be
determinative. Her position, at this point, appears to be that there is simply no way
around this conflict. This is an important point and I will return to it in my analysis.
[32] The March 6, 2007 return date for the City’s motion to strike was adjourned and on June
26, 2007 - almost 3 years ago - I presided over a case conference for the purpose of
creating a timetable for Coburn’s motion to disqualify BLG.
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[33] Pursuant to the June 26, 2007 timetable, all cross-examinations were to have been
completed by October 10, 2007.
[34] It was only on October 29, 2007, well past the deadline to complete this step, that
Coburn‘s counsel advised that he did, indeed, wish to cross-examine Michael Martosh,

the City’s deponent. Also at that time, and for the first time, counsel advised he wanted
to conduct Rule 39.03 examinations of Mayor Miller, auditor general Griffiths and Brad
Ross, as well as of David Baines.
[35] BLG responded on November 19, 2007, stating that this was the first mention of
Coburn’s desire to summon witnesses; that the timetable would have to be amended; and
that, while they were not conceding that this request was appropriate, they were prepared
to review Coburn’s explanation as to why each examination was being sought.
[36] On December 12, 2007, Coburn’s counsel wrote back, but their explanation was far from
helpful – all they stated at that time was they had to examine the Mayor, Ross and
Griffith because:
we believe that they have relevant, and in fact, necessary, evidence to give in
relation to the pending conflict of interest motion. The notice of motion states,
inter alia, that the City defendants’ interests are at odds with the City’s interests,
particularly on matters of public importance. The examination of these
individuals is intended to obtain further evidence regarding those conflicting
interests from the people best suited to give evidence on those matters. The areas
of the examination will relate to the matters set out in the Motion Record.
[37] This response is, at best, evasive. At its worst, it may reflect the fact that Coburn had not
yet sorted out why she wanted to cross-examine these people, what she hoped they could
tell her or how it would advance her motion to disqualify BLG. This rather vague
response stands in stark contrast to the very detailed description of the type of evidence
Coburn now expects to obtain from examinations of each of these people, as outlined in
her factum.
[38] In their December 13, 2007 e-mail, BLG advised that the explanation provided was
essentially unresponsive, yet no further explanation was provided at that time and Coburn
took no further steps to move the matter forward. BLG wrote on April 23 and 29; May
14 and July 28, 2008, asking Coburn to either proceed with her motion or to explain why
she was not doing so. In their April 29 letter, they sought dates from Coburn’s counsel
for another case conference.
[39] Because of Coburn’s delay, a status notice was sent to her counsel on July 28, 2008 and a
status hearing was requested and convened for November 18, 2008. This takes us to
more than a year beyond Coburn’s initial expression of desire to cross-examine Martosh
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as well as the others. During that time, Coburn took no steps at all to make any of that
happen and her counsel ignored efforts by the defendants to advance the proceeding.
[40] The status hearing came on before another master who adjourned the issue of scheduling
to me, in view of the outstanding underlying motion that I had been assigned to hear. I
convened a case conference for January 28, 2009.

[41] The fact that delay was going to be an issue for my consideration at the conference was
made clear in my order of December 16, 2008, pursuant to which the case conference
was convened. I wrote:
Counsel shall be ready to address why they are still dealing with evidence for this
motion when the factums were to have been exchanged by October 2007 – more
than a year ago.
[42] Coburn’s counsel wrote to BLG just before the conference, on January 21, 2009. For the
first time, they provided the City defendants with some insight into their thinking. They
advised that their desire to examine City defendants was the result of the City deponent
having filed a short responding affidavit on the motion to disqualify. Coburn had hoped
there would be more. Coburn’s counsel therefore listed three areas of evidence they
sought to explore as a result:
1) Whether potential conflicts were disclosed (including any ongoing relationships);

2) Whether independent legal advice was recommended and obtained; and
3) Whether waivers were obtained.
The plaintiff also submits that it is also relevant and necessary that there be
evidence about what appears to be direct conflicts between the public interests of
the City of Toronto and the opposing private interests of the affiliated personal
defendants.
[43] It is interesting to note that one of the areas Coburn hoped to explore was whether
waivers had been obtained. Earlier, her counsel had written that even consents could not
cure conflict. How then, could waivers be relevant to the motion as her counsel had
framed it?
[44] Coburn’s counsel explains that the list is not exhaustive. He also states that he has now
reconsidered who he wants to examine and that his list has expanded considerably from
his initial request made in October 2007. Now, 15 months after the first request, he
advised that he wanted to examine all City defendants, along with the defendant, Bains.
[45] I finally spoke with counsel on January 28, 2009. By that time, the City defendants had
determined that they would be moving to quash the notices and summonses. We therefore
scheduled that motion for a full day on June 2, 2009 and put a timetable in place to
ensure that it would proceed as scheduled.
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[46] Although the motion date was made peremptory to both parties, the date had to be
changed because Coburn’s counsel neglected to move promptly on refusals arising from
their cross-examination of Martosh. I spoke with counsel on May 27, 2009 to discuss a
new date. My endorsement of that date reflects my concerns about the delays in moving
the action forward. I state:

The June date is now being put over by almost two months (to July 29, 2009) and
it now precedes my August vacation time, so unless I am prepared to give a
decision from the Bench, there will be further delay. This is an 05 action – every
effort should be made to get this moving forward.
[47] I also made it clear how Coburn was to proceed with her refusals motion:
Mr. Klippenstein, after consulting with Mr. Certisimo regarding his availability,
should get the refusals motion on an RM list by contacting the Scheduling Unit.
(emphasis added)
[48] Despite this clear instruction and the concerns I had expressed about delay, Coburn did
nothing to get the refusals motion scheduled. Her counsel wrote to me again in late June
2009, about a month after our conference, asking me to hear their 1-hour refusals motion
in the full day slot I was holding for this motion. The request was precipitated by
Coburn’s inability to schedule the refusals motion before the return date of this motion,
because they had waited too long to do so. In my order of June 24, 2009, I address the
request:
I spoke to counsel on May 27/09. At that time, the July 29/09 motion was
scheduled peremptory to both parties. Counsel has known since mid-May about
this refusals motion. Attempts to schedule should have been made then. If
counsel waited until mid-June to do so, this outcome is no surprise.
[49] I refused to use the July date as requested – a refusals motion does not get to jump the
queue because counsel is tardy in booking it. This would be unfair to other users of the
court.
[50] I therefore concluded my order as follows:
As and when I will consider whether to grant a new motion date –this is the 2nd
adjournment request of a peremptory motion date. Counsel clearly does not
appreciate the significance of the term.
[51] The refusals motion was finally heard on September 10, 2009, my reasons released on
September 14. Success on the motion was divided.
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[52] On November 23, 2009, I again scheduled this motion, this time, to be heard on March 2,
2010. Again the motion date was made peremptory to all parties. The motion was heard
that day but not completed. Further time was scheduled on March 31, 2010 to complete
it.

The evidence filed for this motion
What the City relies on
[53] The City defendants filed the affidavit of Michael Martosh dated February 19, 2009 for
this motion. As Martosh had already filed an affidavit in response to Coburn’s
disqualification motion, this is his supplementary affidavit.
[54] Both Martosh’s affidavits have been carefully drafted to say little about the matters in
issue such that his words invite further exploration. In the second affidavit, filed for this
motion, for example, in paragraph 3, he discusses what was done to make the City
defendants aware that BLG had been retained to represent them all and that any
divergence in interest could affect BLG’s ability to do so. All Martosh states in this
regard is that “appropriate steps” were taken but he completely fails to outline what those
steps consisted of.
[55] Similarly, when Martosh speaks about what was done to confirm that there were no
conflicts identified; that an opportunity to obtain independent legal advice was made
available and that the City defendants were encouraged to step forward if a divergence of
interests developed, all Martosh had to say was that “appropriate steps have been taken”.
The questions: “How? What were they? When was this done? and By whom?”
immediately jump to mind.
[56] The remainder of the Martosh affidavit sets out the chronology of events, much as I have
done above.
[57] Although the Martosh affidavit is vague in the extreme, one of the issues I will have to
deal with on Coburn’s underlying motion will be who bears the onus. If it is Coburn, the
City defendants’ strategy in saying little in response to that motion or in support of this
one is an appropriate one.
[58] Coburn, of course, has always had the right to cross-examine Martosh, subject to
exercising that right in a timely fashion. To the extent that Coburn is of the view that the
responses to these questions are important, her counsel could have asked these questions
when cross-examining Martosh in respect of this motion. I note, however, that early on
in the process, Coburn’s counsel had already indicated that, in his view, the City
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defendants could not consent their way out of this alleged conflict. It is therefore
surprising that they now rely on the vagueness of the Martosh affidavits as the reason
behind their notices of examination.
[59] Although not expressed, there seems to be some concern on Coburn’s part that having
Martosh respond to these questions, either directly or by way of undertaking based on his

discussions with others, would somehow dilute the quality of that evidence. It appears
that hearing each defendant discuss their individual experience is therefore what Coburn
is after. The question is: is this something they are entitled to and even if they are, why
are they really seeking the evidence in this way?
What Coburn relies on
[60] Martosh’s earlier affidavit, sworn in response to the motion to disqualify BLG, was also
filed for this motion, though it was Coburn, not the City defendants, who put it before the
court, in a supplementary motion record. It is because of the brevity of that affidavit that
Coburn now claims she must examine others in order to get the evidence she needs to
disqualify BLG.
[61] The first Martosh affidavit was sworn on July 30, 2007. Here, Martosh tells us how he
came to be affiliated with these issues: he is counsel with the Legal Services Division of
the City and he acted for the City with respect to employment-related matters involving
the defendants, Redfearn and MacLeod.
[62] The first page of Martosh’s affidavit is devoted to explaining who each of the defendants
is. He deals with the matters in issue on the disqualification motion essentially in one
paragraph (paragraph 11), and for the remainder of the affidavit, he focuses on Redfearn
and MacLeod, whereas it appears the underlying motion will be far broader than the
issues involving these two defendants.
[63] What is striking, once again, is how little Martosh actually says. He speaks in a passive
rather than an active voice, so various acts are described but the actors who performed
them are not identified. By way of example, in paragraph 11, Martosh tells us that it was
determined that the City defendants were each entitled to insurance coverage for this
claim and that it was determined that there would be no conflict if BLG were to represent
them all. Martosh does not say who made these calls; when they were made; what
considerations were taken into account before arriving at these conclusions and whether
the individuals were consulted or at least advised of what was done and why.
[64] Martosh then devotes two paragraphs to the City’s dealings with Redfearn and MacLeod
after the two were suspended by Coburn. He refers to the investigation that was
conducted subsequent to their suspensions, stating that it concluded on November 16,
2005 and that neither supervisor was found to have been justifiably suspended by
Coburn.
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[65] The two supervisors were represented by counsel when a resolution was reached. The
resolution involved their reinstatement to their respective positions and the City’s
agreement to having BLG act for them in this action. They therefore had an opportunity
to obtain independent legal advice in the context of being jointly represented with the
remaining City defendants. This appears to have been something that they sought and the
end result is common representation.

[66] Coburn also filed the transcript from their cross-examination of Martosh in the context of
this motion. From the transcript, we learn that Martosh was brought into the file to deal
with the aftermath of the suspensions of Redfearn and MacLeod and with their efforts to
be reinstated. He was effectively City counsel who was consulted “on matters of
employment law”.
[67] Martosh states that there were, in fact, two investigations conducted as there were two
kinds of allegations made involving these defendants. The allegations of fraud and
improper use of their positions – the systemic issues - were reviewed by the auditor
general’s department. The allegations of harassment and discrimination, or treatment of
staff, were turned over to Monica Edwards.
[68] Martosh was hesitant when responding to questions about the outcome of each
investigation. He was clearly not comfortable speaking about these issues, clarified more
than once that these were not his views he was expressing but rather, conclusions reached
by those who had conducted the investigations.
[69] Matters became worse when BLG counsel turned to the conflict of interest issues. At
questions 97- 99:
Q: Were you told any piece of information or given any document that
actually sheds light on what happened on the issue of conflict of interest at
the risk management level?
A: I have no recollection of that being reported to me or being – telling me –
no, I was provided information that said here are the people we are going
to represent. You can advise counsel that here are the defendants that
they are—for whom there is insurance coverage.
Q: So is I ask you, can you give me any specifics about how the conflict of
interest issue was considered within the City, you can’t give me anything?
A: No, not directly.
Q: And not indirectly either; right?
A: Not at this point, no.
[70] Then, at question 101-102:

Q: Did you provide any information or advice or description of the conflict of
interest issue to the risk management people? I’m not asking you the
contents of it. I’m asking did you provide any.
A: I don’t remember whether I did or I didn’t.
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Q: But I take it from everything that you’ve said that you probably did not; is
that right?
A: I would think that I probably did not, but – and I do not remember whether
I did or didn’t.
[71] There is one aspect of the cross-examination that the City defendants rely on. At

questions 114-116:
Q: Is there any written consent or waiver from any of the City defendants on
the issue of legal counsel’s conflict of interest or potential conflict of
interest?
A: For each of them, there is.
Q: Okay, and can you tell me when those were created?
A: The beginning to the middle of March this year.
Q: Of two thousand—
A: 2009, but to answer your earlier question, there have been ongoing
discussions about the conflict issue or had been. The consents that I’ve
just referred to are the most recent manifestation of those discussions.
The discussions I had mentioned earlier – that is, the conflict of interest –
there were discussions shortly after receiving the claim that I would have
had, did have, with my director. (emphasis added)
[72] Martosh then went on to explain that he could not say what happened when, as the
process has been a fluid one, culminating in the signed consents in March 2009.
Although the notice of examination served on Martosh directed him to bring these
consents, along with a myriad of materials, to the cross-examination, and though the
subject was raised and discussed, he was at no time asked to produce any of the consents
or anything else for inspection. He was also not asked to undertake to provide responses
to questions he was unable to answer at the table.
[73] Coburn relies on the first Martosh affidavit and the transcript of his cross-examination,
as, on her submission, they demonstrate how little Martosh knows about these events and
that this factor, alone, is a basis to allow Coburn to cross-examine others. Of course, this
cross-examination did not take place in the context of the underlying motion – the parties
went to great pains to ensure that each cross-examination would be self-contained and
touch only on the issues of the particular motion to which it related. It is therefore
possible that Martosh will fully inform himself before being cross-examined regarding
the underlying motion to disqualify.
[74] Coburn and the City defendants disagree on the significance of Martosh’s limited
knowledge of the component facts pertaining to the matters in issue. Whether or not his
limited knowledge is an important factor for my deliberations will turn largely on the
burden of proof on the motion - what it is that must be shown and by whom. I will deal
with this in more detail later on in these reasons.
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[75] I turn now to Coburn’s evidence for this and for her disqualification motion. Like
Martosh, Coburn filed a supplementary affidavit addressing the issues raised by this
motion. Hers is dated March 2, 2009.
[76] In order to put her supplementary evidence in context, it makes sense to start with her
first affidavit, filed in support of her motion to disqualify BLG. As was the case with her

claim, Coburn’s affidavit is extremely long and detailed. Coburn states that she believes
that the facts set out in her Amended Claim are true and her evidence is premised on her
further belief that:
Several conflicts of interest between the City-related Defendants are evident from
the facts set out in my Claim.
[77] Unfortunately, in a number of instances in her pleading, Coburn makes assertions based
on her belief but no explanation for those beliefs are provided either there or here.
Therefore, including this phrase in Coburn’s affidavit does not necessarily overcome the
evidentiary hurdles she must meet.
[78] In explaining the purpose of her motion to disqualify BLG for conflict, Coburn states:
I am bringing this motion because I am concerned that the individual City-related

Defendants (David Miller, Fareed Amin, Jeffrey Griffiths, Shirley Hoy, Brad
Ross, Ian Redfearn and Colin MacLeod) have personal interests in this action
that are inconsistent with the public interest, and that they acted contrary to the
City of Toronto’s interests. These personal interests are some of the very interests
that I believe led to the wrongful termination of my employment and to my front-
page defamation in the Globe & Mail.
[79] For the first time, Coburn then lists seven examples of conflict that she believes are
apparent from the allegations in her Amended Claim:
1) Redfearn and MacLeod acted against the City’s interests by endangering the safety of
inspection staff in failing to ensure that City by-laws were properly enforced;
2) By publicly denying the accusation of wrongdoing against them, Redfearn and
MacLeod’s position conflicted with the City’s interests;
3) The Mayor acted contrary to the best interests of the City by giving his own personal
political interests priority when he terminated her employment prior to completion of a
proper investigation;
4) The Mayor acted contrary to the City’s interests when he made public statements critical
of the City regarding the handling of the suspension of the two supervisors;
5) Amin, Griffiths and Hoy acted contrary to the City’s interests and their public duties
when they failed to properly investigate or respond to incidents of harassment, assault,
violation of public safety and other misconduct alleged against the two supervisors;
14
6) Amin, Griffiths and Hoy acted contrary to the City’s interests by preferring the Mayor’s
personal political interests to Coburn’s interests when they failed to thoroughly
investigate the complaint against her; and
7) Ross, Amin, Griffiths and Hoy acted contrary to their obligations to the City by
disseminating or allowed the dissemination of her confidential personal information.

[80] Coburn then goes through the chronology of events that she believed led to her dismissal,
as well as the publicity that surrounded it. In large part, Coburn relies on what she was
told or what she believes. By way of example, though the complaints about her were
allegedly anonymous, she now accuses the defendant, Sandra Pavan, of having been
behind them, yet she fails to explain the basis for her belief.
[81] Coburn also relies heavily on press clippings to make her case. Though these clippings
may well ultimately serve as evidence in the context of her claim for defamation, it is
difficult to see how statements allegedly made and reported by the press can stand as
evidence of conflict among the City defendants. To begin with, this is all hearsay
evidence and not necessarily a reliable source for achieving what Coburn is trying to use
them to demonstrate. Quotes can be reported in part or taken out of context, so it is
difficult for a court to be expected to rely on them as determinative of issues such as
those raised by this motion. I will have more to say about the value of the clippings as
evidence when dealing with the law.
[82] Coburn also gets into the merits of her claim, by explaining in some depth her take on the
situation that she was told led to her termination.
[83] In her supplementary affidavit, filed in direct response to this motion, Coburn compounds
the hearsay problem. Again, media reports are attached, this time to show that death
threats had been made against a city inspector. This, Coburn asserts, strengthens her
belief that it was appropriate to investigate the allegations against Redfearn and
MacLeod.
[84] Lending further support to these issues, states Coburn, are further press clippings, these
dealings with criminal conviction registered against the police officer who allegedly
physically threatened City inspector staff.
[85] Coburn adds allegations against the Mayor, stating that he was:
elected in 2003 on a platform containing substantial anti-corruption elements.
[86] Coburn attaches further correspondence between counsel and includes hearsay evidence
from the former junior lawyer who assisted her counsel with this action and from
counsel’s assistant. She does not explain why these individuals did not provide their
own direct evidence. I expect this evidence is included to address the allegations of delay
on Coburn’s part in moving the action forward, though she does not state as much.
15
[87] One three-week delay is explained by reference to Mr. Zbogar’s (the junior counsel)
letter, advising that he had been away from the office for most of the three weeks leading
up to October 11, 2007 due to injuries sustained in a motor vehicle accident. This was a
critical time in the timetable for the disqualification motion, as cross examinations were
to have been completed by October 27. There is, however, no suggestion that Mr.
Klippenstein was also unable to comply with the timelines agreed to or that he even

advised BLG about this development.
[88] There is also no explanation for how the cross-examinations could have been completed
on time even if Mr. Zbogar had been well, as they were not scheduled before his accident
and likely could not have taken place on only three weeks’ notice. The timetable was put
in place on June 26, 2007 – the time to schedule cross-examinations, even on a
contingency basis, was the following week.
[89] Coburn points to a three and a half month delay, between January 7 and April 23, 2008,
during which time her counsel awaited further word from BLG about moving the matter
forward. Again, this period came immediately after Coburn’s response to BLG’s request
to clarify the purpose of her request to examine the City defendants as witnesses on this
motion. Having written to advise that the clarification provided was not, in effect,
responsive, the ball had moved back to Coburn’s court to serve her Notices of
Examination if she so desired. None were served until January 2009.
[90] Coburn then relies on information provided to her by her counsel, to the effect that Mr.
Zbogar changed firms in or around the time the April 23, 2008 letter was received. She
fails to state when Mr. Alexander came on board, however, or if there was any overlap or
why senior counsel was unable to deal with this. The affidavit is, therefore, as vague as
Martosh’s in areas where she carries the burden of proof.
[91] Coburn refers to a series of e-mails from Mr. Alexander to BLG, proposing dates for a
case conference before me. She suggests that the 8 day gap in hearing back caused the
delay in obtaining a case conference. This is a very short period of time in the context of
the lengthy gaps on Coburn’s part between actions taken to move the action forward.
Further, all Mr. Alexander had to do was to write to request a case conference and a date
would have been provided. Obtaining a telephone case conference is not like booking a
motion – generally, the request is made directly to the master and a date and time are
assigned. This would certainly have expedited matters here.
[92] Finally, Coburn attaches correspondence which shows that, once again, BLG made
efforts to try to understand the basis for this motion, again to be deflected by an unhelpful
response.
The law
16
[93] The right to examine a witness in aid of a motion is derived from Rule 39.03, a provision
that was discussed in Ontario Federation of Anglers & Hunters v. Ontario (Ministry of
Natural Resources) [2002] O.J. No. 145. There, the Court of Appeal stated:
The onus is on the party seeking to conduct the examination to show on a

reasonable evidentiary basis that the examination would be conducted on issues

relevant to the pending application and that the proposed witness are in a
position to offer relevant evidence. (emphasis added)
[94] Thus, a party who seeks to rely on the Rule must put together an appropriate evidentiary
record to support their request. That record must consist of information in proper
evidentiary form rather than just “speculation and allegations” (see Ontario Federation of
Anglers and Hunters v. Ontario, (supra); Schreiber v. Mulroney, [2007] O.J. No. 3901).
[95] The question of whether newspaper articles can constitute proper evidence was discussed
by Binnie J. In Public School Boards Association v. Alberta (A.G.), [2000] 1 S.C.R. 44,
where he stated:
I held in the previous order that the two newspaper articles sought to be adduced
by the PSBAA do not constitute “legislative fact.” The two columns represent the
opinions of two individuals writing in daily newspapers who may or may not have
the underlying facts straight and whose opinions may or may not be valid. The
authors cannot be cross-examined. The contents are apparently controversial.
No basis has been made out by the applicants for admission of this material. It
will therefore be rejected.
[96] The evidence filed must then address two distinct issues:
- that the examination will be conducted on issues relevant to the pending litigation;
and
- that the proposed witness is in a position to provide it.
[97] Wording the test in this way was intended to ensure that examinations of this kind are
reserved only for those cases where they will likely have the effect of enhancing the
record that comes before the court when the underlying motion is heard. The purpose of
imposing this two-part test is to discourage parties from simply pursuing these
examinations as a matter of course in hopes of finding something that could help. This
Rule was never intended to provide legislative authority for conducting what is
commonly referred to as a “fishing expedition.” (see Transamerica Life Insurance Co.
Of Canada v. Canada Life Assurance Co., [1995] O.J. No. 3886; Clark v. Madill, [2001]
O.J. No. 3256).
[98] Although the Court of Appeal, in Payne v. Ontario Human Rights Commission (2000),
2000 Carswell Ont 2717 stated that the onus created by the Rule is not a high one, the
court also made it clear in Payne that the Rule cannot be used to conduct a general
discovery, as that would amount to an ulterior or improper purpose.
17
[99] Thus, although the Court of Appeal stated in Canada Metal Co. Ltd. et al. and Heap et al.,
[1975] O.J. No. 2201 that there is a prima facie right to use Rule 230 (now 39.03(1)) where
the evidence sought to be adduced from a non-party is relevant, the moving party must
still demonstrate, through evidence, that it is likely the witness will have the evidence
sought.

[100] Both parts of the test must be met. Thus, in Schreiber v. Mulroney (supra), the court
refused to permit an examination where there was no evidence that Mr. Mulroney was in
a position to offer relevant evidence. Lax J. concluded that the examination was sought
to either conduct third party discovery or it was a fishing expedition for evidence to be
used for a pending motion. In her view, either of those purposes was irreconcilable with
the purpose of Rule 39.03.
[101] Where a request for documents to be produced at such an examination is overly broad,
the court can infer that fishing is the purpose behind the summons (see Dietrich v. Home
Hardware Stores Ltd., [2007] O.J. No 213). That was the case in Payne v. Ontario
Human Rights Commission (supra), where the court found that the list of documents
sought to be produced and appended to the notice of examination was:
so sweeping and unfocused that it is apparent that the appellant is, in effect,
insisting upon a general discovery of the Commissions through its registrar,
hoping to uncover something that will help her case. The proposed scope of the
examination is simply too broad.
[102] In terms of the degree of relevance required, Campbell J’s decision in Manulife Securities
International v. Society Generale (2008), 90 O.R. (3d) 376 is instructive. There the court
stated:
The basic premise that must be satisfied is that there will likely be evidence
obtained relevant to the defendant’s motion. (emphasis added)
[103] Thus, the onus, though not absolute in terms of showing actual relevance, must go so far
as to demonstrate that it is likely that evidence will be obtained. This is a higher onus
than that advanced by Coburn - she submits that she need only show a reasonable
possibility of that outcome. The term “likely” brings the standard closer to one of
probability than possibility.
[104] The comments of Cullity J. In Helsin v. Verbeeten [2001] O.J. No.1602) are helpful in
terms of putting the various parts of the test in perspective:
...there is no onus on them (the party relying on Rule 39.03) to show that the
evidence would be helpful to their case. If the evidence would be relevant to the
issues, the burden would be on the respondents to show that the examination
should be considered to be an abuse of process.
18
[105] Thus, once the party seeking to examine has satisfied the court on a proper evidentiary
basis that the individuals they seek to examine likely have relevant evidence, the onus
shifts to those resisting these examinations to show that the examinations are an abuse of
process.

[106] If the court finds that the proposed examinations constitute an abuse, they will not be
permitted. That will be the case where the proposed witness did not appear to have
relevant and admissible evidence towards the main motion or where their evidence was
not necessary (see Colville-Reeves v. Canadian Home Publishers Inc., [2002] O.J. No.
598).
[107] Further, when considering the issue of possible abuse of process, the court must also
consider the nature and merits of and the grounds for the underlying motion (see Clark v.
Madill, [2001] O.J. No. 3256; Elfe Juvenile Products Inc. v. Bern, [1994] O.J. No. 2840).
In Canada Metal Co. Ltd. et al. and Heap et al., [1975] O.J. No. 2201, the Court of
Appeal stated:
There will be such an abuse if the main motion is itself an abuse, as by being
frivolous and vexatious, or if the process under Rule 230, while ostensible for the
purpose of eliciting relevant evidence, is in fact being used for an ulterior and
improper purpose, or if the process is being used in such a way as to be itself an
abuse (as for example, by issuing subpoenas to every member of the House of
Commons to prove a defamatory statement shouted out by a spectator in the
gallery). The list is not exhaustive.
[108] When dealing with the main motion, the law governing disqualification of counsel for
conflict provides that a hypothetical conflict will not justify what has been referred to as
an “extraordinary and drastic remedy.” (Chapman et al. v. 3M Canada Inc. et al., [1995]
O.J. No. 2628).
[109] Parties can agree to be jointly represented despite an apparent conflict by providing an
express waiver (see R. v. McNeil [2002] 3 S.C.R. 631; Booth v. Huxter (1994), 16 O.R.
(3d) 528; Tiboni v. Merck, [2008] O.J. No. 1048). The exception to this principle is
where the litigation in issue engages the public interest. Counsel was disqualified in
Booth, however the proceeding, in that case, was an inquest, not a civil action so the
public interest was apparent on its face.
[110] The mere fact that a body with a public duty has been sued jointly with individuals for
whom the public body is responsible does not, in and of itself, engage the public interest.
Thus, the considerations that would apply in the context of an inquest or public inquiry
are not necessarily the same as those that arise in the context of a civil action, where the
outcome sought is damages payable to a plaintiff (see Cram v. Law Society of British
Columbia, [2004] B.C.J. No. 2382).
19
[111] A wrongful dismissal action against a public body does not automatically transform the
matter from a civil action involving individual rights and obligations to one that calls into
question the impact on the public interest. The action remains a private, not a public
one, despite the public status of the former employer (see Des Champs v. Prescott-
Russell (Conseils des ecoles separees catholiques de langues francaise),[1999] 3 S.C.R.
281; Brunet v. Ottawa Police Association, 2004 CarswellOnt 2348; Keast v. Bonney,

1966 CarswellOnt 1657).
[112] In Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, the Supreme Court of Canada
stated:
Where a public employee is entitled under a contract of employment regardless of

his or her status as a public office holder, the applicable law governing his or her
dismissal is the law of contract, not general principles arising out of public law...
...where a dismissal decision is properly within the public authority’s powers and
is taken pursuant to a contract of employment, there is no compelling public law
purpose for imposing a duty of fairness...
...The dismissal of a public employee should therefore generally be viewed as a
typical employment law dispute. However, there may be occasions where a
public law duty of fairness will apply...The first occurs where a public employee is
not, in fact protected by a contract of employment. This will be the case with
judges, ministers of the Crown and others who “fulfill constitutionally defined
state roles...” A second situation occurs when a duty of fairness flows by
necessary implication from a statutory power governing the employment
relationship.
[113] Courts are also weary of using a summons to witness to extract information for political
purposes. Thus in Ontario Federation of Anglers and Hunters v. Ontario (supra), the
Court of Appeal stated that courts should:
...be careful to ensure that a summons to witness directed to a Minister of the

Crown under Rule 39.03 is not simply for the purpose of “turning the court
process into an extended battle grounds for extracting information pertaining to
the ongoing political debate...”
[114] Presumably, the same rational applies to all elected officials, including mayors.
[115] Similarly, in Deschamps v. Conseil des ecoles separees catholique de langue francaise de
Prescott-Russell (supra) the Supreme Court of Canada had to determine whether the short
limitation period prescribed by s. 7 of the Public Authorities Protection Act R.S.O. 1990,
c. P.38 was applicable to the facts before them. In the course of their analysis, the court
made the distinction between the exercise of public and private law duties by a public
body, directing that the focus of the inquiry had to rest on whether the claim arose in the
context of a public duty or power exercised or owed by the public authority. The purpose
20
of the analysis was to enable the court to determine whether the facts engaged the public
interest, because if it did, s. 7 would apply.
[116] The court gave examples to demonstrate the difference between public and private law
duties:

If the Board were sued by an injured child for operating an unsafe school, or by
parents for wrongfully refusing to admit their child to classes, the claims would
properly engage the public duties of the school and be covered by the special
limitation. On the other hand, a claim by a disgruntled builder under a school
construction contract, or an unpaid caterer who provided food services, would
stand on a different footing. Although the subject matter of their claim clearly
related to the execution by the school of its public mandate, it is incidental
thereto. The builder or caterer would be asserting private rights under private
contracts. Their claims would not be within the intended scope of the disability
imposed by the special limitation period.
[117] A review of the facts of the Deschamps case is helpful. The action arose after three
superintendent positions were declared redundant by Regulations under the Ontario
Education Act. The appellant, one of the three superintendents affected, was transferred
to the position of school principal and was eventually required to return to teaching.
Eight months after these events, he sued the Board. The Board responded with a motion
to have the action dismissed on the basis of the six-month limitation period prescribed
under the Public Authorities Protection Act.
[118] The motion was dismissed, but that result was overturned by the Court of Appeal, as they
concluded that the six-month limitation period applied. The Supreme Court of Canada,
however, allowed the appeal and reinstated the decision of the motions judge. Although
the court agreed that the Board’s reorganization was a public initiative, the plaintiff’s
alleged injury was the result of the Board’s implementation of the reorganization and
raised only labour relations issues as between the plaintiff and the Board as its employer.
[119] Where the underlying motion is one to have a lawyer removed for conflict, the court will
exercise the highest level of restraint before interfering with a party’s right to be
represented by counsel of their choice. The test for removal is an objective, not a
subjective one and a possibility of real mischief must be identified (see Colville-Reeves v.
Canadian Home Publishers Inc. (supra)).
[120] This is an area that has also been considered by the Law Society of Upper Canada in the
context of the Rules of Professional Conduct. Rule 2 deals expressly with a lawyer’s
relationship to his or her clients. Rule 2.04(3) states:
A lawyer shall not act or continue to act in a matter when there is or is likely to
be conflicting interest unless, after disclosure adequate to make an informed
decision, the client or prospective client consents. (emphasis added)
21
[121] The nature and extent of disclosure required in order for the consent to be considered
“informed” moves on a sliding scale. While the Rule does not require lawyers to advise
their clients to obtain independent legal advice, the Commentary to the Rule provides
that:

...in some cases, especially those in which the client is not sophisticated or is
vulnerable, the lawyer should recommend such advice to ensure that the client’s
consent is informed, genuine and uncoerced.
[122] While these Rules and Commentaries do not have the force of legislative
pronouncements, the court has stated that, in appropriate cases, they should be recognized
as reflecting public policy and that, as a result, they should be enforced by the court (see
Tiboni v. Merck Frosst Canada Ltd., supra).
[123] Regardless of the merits of a party’s reliance on Rule 39.03, timing is a factor that should
also be considered. The court may curtail these examinations where they have not been
pursued with diligence. Rule 39.03(3) reads as follows:
The right to cross examine shall be exercised with reasonable diligence, and the
court may refuse an adjournment of a motion or application for the purpose of
an examination where the party seeking the adjournment has failed to act with
reasonable diligence. (emphasis added)
[124] On the other hand, the court will not permit the underlying motion to disqualify if it is
premature. In Essa (Township) v. Gueris (1993), 15 O.R. (3d) the Divisional Court
indicated that courts should be reluctant to make premature orders that prevent counsel
from acting for a client who has chosen him. These orders should only be made in the
clearest of cases, where a possibility of real mischief has been demonstrated.
[125] If the underlying motion is found to be premature, it effectively has no merit at this
juncture – in that case, it would also be premature to seek to examine parties to support
the underlying motion.
The parties’ submissions
[126] The City defendants began their submissions by emphasizing their assertion that this
action involves a purely private interest dispute – it is a claim for damages payable to
Coburn flowing from alleged wrongful dismissal and defamation. The fact that the City,
Mayor and city staff are among the defendants in no way converts the action to a forum
for protecting the public interest.
[127] Further, BLG states that the City defendants have each executed a written consent to
allow them to represent all of them.
22
[128] Coburn maintains that though the context of this dispute is a civil action, it nonetheless
raises issues of public interest, such that a higher level of court scrutiny comes into play
when dealing with conflict. Her underlying submission is that her termination was part
of a cover up, and that by retaining one counsel to represent all City defendants, they
have made counsel part of the cover-up.

[129] Coburn asserts that she has to examine each City defendant regarding the conflict that
affects each of them. She focuses on Martosh’s short and uninformative affidavit filed
on the underlying motion and his evidence on cross-examination as the basis for her need
to take this step.
[130] She further claims that her disqualification motion is not speculative but rather, is
supported by her affidavit and statement of claim and she is critical of the City
defendants for not having cross-examined her on her affidavit.
[131] At the same time, Coburn claims she was not required to cross-examine Martosh on the
issue of the consents – in her submission, the consents are fundamentally challenged.
They cannot be considered informed consents if the City defendants take the position that
there was no conflict.
[132] The City defendants also raised the following concerns:
1. Rule 39.03 onus: the right to cross-examine is not an absolute right. The party seeking
to cross-examine must show the evidence they seek is relevant and that there is good
reason to believe that the party they wish to examine can provide it;
2. Evidentiary problems: Coburn ‘s affidavit merely repeats the allegations in her pleading
and, in large part, she relies on what she says are conflicting media quotes to support her
position that the City defendants are not ad idem;
3. Prematurity and the undertaking: counsel for the City defendants has undertaken to step
aside in the event that a real conflict among the City defendants arises. The motion is
premature at this time as there is no apparent basis to allege conflict;
4. Delay: The right to cross-examine must be exercised with reasonable diligence, as per
Rule 39.03(3). In this case, it has not been. The first phase of delay ran from July 2006,
when the City defendants delivered their Notice of Intent to defend, until February 2007
when Coburn first challenged the City defendants’ choice of counsel – a period of seven
plus months.
23
The second phase of delay ran from the June 2007 telephone case conference until
October 29, 2007, when Coburn first gave notice that she wanted to cross-examine some
of the City defendants – a period of four more months.
The third phase of delay, and the most problematic, spanned October 29, 2007 until June

21, 2009, the first time Coburn gave any indication that she now proposed to examine all
City defendants – a period of 15 more months.
In fact, this motion, leading up to the underlying motion, was not heard until more than
three years after the issue of conflict was first raised and more than two years after
Coburn first expressed a desire to cross-examine some defendants. These gaps were not
due to lack of available court resources but in large part, were caused by Coburn’s failure
to take steps to move forward.
5. Fishing expedition: The City defendants make the point that there is no real indication,
supported by evidence, to show what it is that Coburn believes each of them knows that
is relevant to the underlying motion. She cannot meet the onus by referring to alleged
discrepancies in what the various players are alleged to have said, based on newspaper
reports.
In the absence of proper supporting evidence for this motion, it appears that Coburn is
hoping to go on a fishing expedition, to collect materials that might assist her in the
underlying motion, without having laid the proper foundation for her examinations.
There is also concern that she could seek to explore the larger issues with parties who
may end up being let out of the action once the summary judgment motion sees the light
of day.
This feeds into the City’s abuse of process submission. Their expressed concern is that
Coburn is trying to obtain examination of City staff and the mayor now, as they may be
let out of the action on the return of the summary judgment motion, in which case there
would be no right of discovery.
Analysis and conclusions
1. Public vs. Private Interest
[133] Coburn maintains that her action raises issues of public interest as she claims that her
termination was a “politically motivated decision”.
[134] It is important to bear in mind that this proceeding is neither an inquest nor an inquiry
and that it does not involve criminal charges. These issues come before the court in the
24
form of a civil action for wrongful dismissal and defamation for which damages,
primarily, are sought. Coburn also seeks an apology and a retraction, but in view of the
considerable amount of damages sought, damages appear to be the primary focus of her
claim.
[135] To the extent that any findings of wrongdoing by the Mayor or other City staff are found,

the only available penalty will be damages, payable directly to Coburn, and an apology.
In effect, this action can have little, if any, impact beyond these parties. In that context,
it is difficult to see how this matter engages the public interest.
[136] The law is clear - suing a public body does not alter the status of the action from one
involving private interests to one that engages the public interest (see Cram v. Law
Society of British Columbia, supra; Des Champs v. Prescott-Russel (conseils des ecoles
separees catholique de langue francaise), supra; Brunet v. Ottawa Police Association,
supra; Keast v. Bonney, supra; Dunsmuir v. New Brunswick, supra).
[137] All civil actions against a public body do, to some extent, impact on the public purse, and
therefore, on the public – there are defence costs to consider and the potential exposure to
a damage award. That, however, is also not a sufficient basis for saying that the public
interest is at play.
[138] In Dunsmuir (supra), the court dealt with issues similar to those before this court –
holding that the dismissal of an employee does not give rise to a duty of fairness, unless
the employee affected is not protected by a contract of employment. This exception
applies to judges and ministers of the Crown. There is a further exception where the duty
of fairness can be found in a statute. Neither exception applies here – Coburn expressly
pleads an oral contract of employment.
[139] In Deschamps (supra), the court determined that regardless of the reason for the
terminations, the fact that they occurred was the result of the implementation of a policy
decision, subject only to a private law, not a public law duty.
[140] I have difficulty accepting that the fact that Coburn believes her dismissal was politically
motivated and that she so asserts in her action is a sufficient basis for viewing this action
as one that raises the public interest. The mere fact that the public may be interested in
its outcome is not the determinative factor that renders a case one that engages the public
interest. Further, it is now more than 5 years since these events, such that even the
public’s interest in this has likely faded.
[141] This is an important point, as Coburn maintains that the court must exert a higher level of
scrutiny when dealing with the disqualification motion here, as this action involves the
public interest. At this stage, I am hard pressed to accept that characterisation. As a
result, the general rules will be applied, in the context of this set of reasons. There
appears to be no grounds for an enhanced level of scrutiny here.
25
[142] Parties can be jointly represented, notwithstanding apparent conflict, if they provide their
counsel with an express waiver (see R. V. McNeil, supra; Booth v. Huxter, supra; Tiboni
v. Merck, supra). As the action does not appear to engage the public interest, that
general rule, rather than the exception that applies in matters of public interest, appears to
be applicable here.

[143] The fact that each of the City defendants executed a consent suggests that Coburn will
have a steep uphill climb when it comes to the merits of the underlying motion. This is a
factor I must consider when dealing with this motion.
2. Onus under Rule 39.03
[144] It is well established that the right to examine a witness on a pending motion is not an
absolute one. In order to succeed on this motion, Coburn has the onus of showing, on a
reasonable evidentiary basis, that the examinations she proposes to conduct are with
respect to issues relevant to the disqualification motion and that each of the proposed
witnesses is in a position to offer such evidence (see Ontario Federation of Anglers &
Hunters v. Ontario (Ministry of Natural Resources), supra).
[145] Though the onus is not a heavy one, Coburn must at least demonstrate that these
witnesses are likely to have the evidence sought (see Canada Metal Co. Ltd. et al. and
Heap et al., supra; Schreiber v. Mulroney, supra; Manulife Securities International v.
Society Generale, supra)).
[146] The law is also clear that this onus can only be met on the basis of an appropriate
evidentiary record, with evidence in proper form as distinct from “speculation and
allegations.”
[147] In an attempt to satisfy that onus, Coburn has done two things. First, she swore an
affidavit in which she declares that what she has set out in her statement of claim is true.
Then, she pointed to various news articles in which the City defendants are quoted as
saying things that she says conflict with one another.
[148] To begin with, Coburn’s affidavit evidence is problematic. Though she adopts the
allegations in her amended statement of claim as evidence, much of what Coburn asserts
in her claim and what she now relies on is based on her belief, and no basis for those
beliefs is provided. By way of example, Coburn asserts that her dismissal was politically
motivated – while Coburn may be able to prove that at the end of the day, it is no more
than speculation at this stage. It is not a proven fact that she can rely on as evidence.
[149] Similarly, she alleges that City staff (“employees or officials”) leaked details about the
investigation into her activities to the newspaper – she does not identify who did this as
she likely does not know. This speculation can therefore not stand as appropriate
evidence on which to ground her requests to examine these witnesses.
26
[150] Coburn’s claim is replete with incidents involving others – she goes on at length about
events involving Officer Daley, matters she can only know about because, possibly, he
told her about them. She fails to say that is the case, however. Again, this is not
evidence in proper form, nor are her comments about what Daley thought or felt.
[151] These are only a few examples of assertions that have not been placed before the court in

proper evidentiary form.
[152] The second type of evidence that Coburn relies on are newspaper articles. As I already
note, the Supreme Court of Canada, in Public School Boards Association v. Alberta,
supra raised serious concerns about the propriety of newspaper articles as evidence.
Further, every apparent conflict raised by these articles was addressed by BLG. Finally,
though parties may appear to have been adverse in interest at one point in time, that does
not necessarily mean that remains the case at this juncture. Thus, though Redfearn and
McLeod could be said to have been at odds with the City while under investigation, their
issues were resolved and they are now content to stand with the City defendants in this
action.
[153] Thus, although the issue of conflict is certainly one that will be relevant to the underlying
motion, I am not satisfied, on this evidence, that there is anything relevant these
witnesses can add to the inquiry as the evidence filed in response to the motion is not
convincing.
[154] Furthermore, much if not all of the information that Coburn seeks could have been
obtained from Martosh when he was cross-examined or can be obtained when he is cross-
examined in the context of the underlying motion. Coburn’s opening position in an early
letter from her counsel was that a consent from each of the parties was irrelevant – as he
put it in his letter of February 28, 2007, even if your clients consented to you being
represented by the same lawyer or firm, such joint representation would inhibit the
proper hearing of the public interest issues inherent in this litigation.
[155] Despite that position, Coburn served a notice of examination on Martosh, which
contained a long list of documents that he was expected to bring to the cross-
examination. The list, which runs for a full page and includes 6 categories of documents,
specifically included the following:
Any document (inducing any written document, any e-mail correspondence, or

any other record) or any relevant part of a document, which:
(a) Purports to provide a Defendant’s consent to representation to present
Defendants’ counsel despite any conflict of interest or potential conflict of
interest of legal counsel, or which purports to provide a Defendant’s waiver
of the Defendant’s rights regarding such conflict of interest; or
(b) Records or references a Defendant’s Independent Legal Advice regarding
counsel’s conflict of interest or potential conflict of interest.
27
[156] Of that group of documents, the ones most obviously relevant to the matters in issue
would have been the consents or waivers, or those documents pertaining to independent
legal advice, yet, Coburn’s counsel neglected to ask to see any of the documents they had
requested.
[157] Surprisingly, in view of the very detailed ducus tecum aspect of the notices of

examination, neither the consents nor any documents referencing independent legal
advice were sought during the course of the cross examination and no questions about the
consents were posed.
[158] Finally, to the extent that Martosh was unable to respond to particular questions, no
undertakings were sought from him to inform himself and to pass the information along.
Instead, Coburn now seeks to rely on Martosh’s inability to respond to questions as the
basis for this motion.
[159] While Coburn certainly did not have to make the case for the City defendants, the onus of
demonstrating that the proposed witnesses likely have relevant evidence was hers.
Further, having chosen to cross-examine Martosh, and having asked that he bring the
consents and more along, her failure to ask to see them or to ask about them was, in my
view, a strategy that has backfired. She cannot now claim that her only access to the
information she claims to require for the disqualification motion is directly from the
witnesses themselves after having ignored the more obvious source.
3. The impact of delay - Rule 39.03(3)
[160] The City defendants maintain that Coburn’s delay in moving forward with these
examinations is now an absolute bar to allowing them to proceed. The City defendants
delivered their notices of intent to defend in July 2006, but it was not until February
2007, seven months later, that Coburn first expressed concern about their joint
representation by BLG.
[161] Having raised the issue, Coburn then did nothing. She ignored the consent timetable
Order for completing cross-examinations and failed to take any steps to initiate them
during the relevant time period. I have already indicated that I do not accept the reasons
provided for the delay in this regard as well supported by the evidence.
[162] She only raised the issue of examining the parties as witnesses in October of 2007, eight
months after first indicating she would be moving to disqualify BLG. At that time, she
referred to only a handful of witnesses, yet again, she took no steps to make it happen,
providing evasive and unhelpful responses to BLG when they inquired as to the purpose
of the examinations.
[163] Then, in June 2009, Coburn raised for the first time her desire to cross examine all City
defendants – at this point, more than two years after first expressing her concern about
this alleged conflict. Again, the evidence does not justify such lengthy gaps in time.
28
[164] Ultimately, this motion was not heard until more than three years after the issue of
alleged conflict was first raised. No good reason was presented for this delay – though
the action is factually complex in view of how it was pleaded, that does not, in itself,
render the action a complex one – certainly not so one that is so complex as to justify
delays of this magnitude.

[165] Rule 39.03(3) reads as follows:
The right to examine shall be exercised with reasonable diligence, and the court
may refuse an adjournment of a motion or application for the purpose of an
examination where the party seeking the adjournment has failed to act with
reasonable diligence.
[166] Thus, though the rule is more often invoked at the time of a request to adjourn an
underlying motion, I see no reason why the same principles should not apply at this stage.
[167] I therefore find that, even if Coburn had persuasively argued that it was likely that these
witnesses each had evidence relevant to the underlying motion, her delay in pursuing the
examinations amounts to a bar.
[168] This is a 2005 action and, in view of their outstanding summary judgment motion that
was derailed by the disqualification motion, the City defendants have yet to plead to it.
If these examinations were permitted to proceed, they would quite possibly result in
further refusals motions. This motion was already adjourned as a result of such a
motion. By the time the parties get through the examinations and possible refusals
motion, it is unlikely that the disqualification motion would be heard until 2011. If it
succeeds, new counsel would have to come on board. It could easily be 2012 before the
parties complete the summary judgement motion and then, the pleadings in the action.
The court must take a stand when unjustified delays take over a proceeding.
4. Abuse of process
[169] The City defendants maintain that the attempt to examine parties who have not sworn
affidavits in anticipation of the underlying motion is, in this instance, an abuse of process.
They say this for a number of reasons.
[170] No actual conflict at this time: To begin with, no actual conflict has been identified. The
evidence that has been filed to-date is far from compelling on the point.
[171] Consents: Further, each City defendant has consented to joint representation. Their
consents have, in more recent months, been embodied in written “consents”, so that they
are entitled to continue with joint representation. The Law Society Rules support this
approach.
[172] Questionable merit of underlying motion: Another issue to be considered when assessing
whether or not a motion of this nature is abusive is whether there appears to be merit in
29
the underlying motion (see Canada Metal Co. et al and Heap et al., supra). The law
regarding disqualification is clear – the court will not oust counsel of choice simply on
the basis of conjecture. There must be something more than a hypothetical conflict
before that will occur (see Chapman et al. v. 3M Canada Inc. et al., supra).
[173] Further, the court is reluctant to make premature orders that prevent counsel of choice

from representing a client (see Essa (Township) v. Gueris, surpa). Although I have not
heard submissions directed towards the main motion as yet, based on the evidentiary
record before me, I can say at this time that it will be difficult to make a finding of
conflict as no probative evidence of actual conflict appears to have been presented to-
date.
[174] Undue delay regarding movement forward and disclosure: The concerns expressed
regarding potential abuse have also been fed by the manner in which Coburn has
approached the main motion. It was only several months after the City defendants had
delivered their Notices of Intent to Defend before she even raised the issue of conflict.
At that time, she was not able or willing to articulate the basis for her position. Initially,
she sought to examine only a few witnesses - again, no details as to why this was
considered appropriate were provided.
[175] It was only after the parties had travelled far down the path towards the underlying
motion that Coburn returned with an expanded list of witnesses and it was only when she
served her motion materials that the basis for the disqualification motion and the request
to examine all of the City defendants was finally revealed.
[176] This is the sort of strategy that leads to suspicions about motivation, as well as concerns
as to whether the decision to seek examinations was one that came to mind well before
any basis for it was developed.
[177] Lengthy ducus tecum: Coburn served Martosh with a lengthy list of documents he was to
bring along with him to his cross-examination, yet failed to ask to see any of them, more
particularly, the consents. Nor did she ask about them. It could almost be said that
Coburn steered clear of asking anything that might result in an informative response, as it
could dilute her position on this motion. Coburn also neglected to ask Martosh to
undertake to advise regarding anything he was unable to answer at the table. This, too,
raises concerns. Coburn appears to have studiously avoided getting into any of the areas
she wants to explore with the individual witnesses in order to enable her to come to court
and claim her inability to get this information any other way.
[178] If the evidence sought is not necessary, this, too, can be viewed as an abuse (see Colville-
Reeves v. Canadian Home Publishers In., supra) – if Coburn failed to elicit it from
Martosh when she had the chance to do so, the evidence cannot be said to have become
“necessary.”
30
[179] The fact that Coburn sought to have Martosh bring such a detailed and lengthy list of
documents with him when cross-examined adds to the concern that this amounts to
nothing more than a fishing expedition and, hence, is abusive in nature (see Dietrich v.
Home Hardware Stores Ltd., supra; Payne v. Ontario Human Rights Commission, supra).
[180] Inappropriate tactics, in view of outstanding summary judgment motion: In view of the

fact that the City defendants have a summary judgement motion pending, pursuant to
which they seek an order dismissing the action against some of the defendants, it is
conceivable that some of the people Coburn now seeks to cross-examine will not
continue as parties to the action and therefore, they may not be compelled to attend to be
examined for discovery. In view of the lack of apparent conflict, the City defendants
allege that seeking disqualification of BLG at this time is premature and therefore simply
a tactical move by Coburn to get examinations of parties she will not have access to in
the fullness of time.
[181] Fishing expedition: Finally, as there is no real indication in Coburn’s evidentiary record
of what these people know that she feels is relevant to the disqualification motion, this
exercise is no more than a fishing expedition on her part, to see if she can find something.
That is abusive and cannot be condoned (see Transamerica Life Insurance Co. of Canada
v. Canada Life Assurance Co., supra; Clark v. Madill, supra).
[182] I am afraid that I share the concerns of the City defendants. Based on the evidence that
has been filed, I, too, have difficulty seeing the justification for the proposed
examinations such that the entire exercise appears to me to be abusive at this time (see
Payne v. Ontario Human Rights Commission, supra).
[183] On the basis of all of the foregoing, I am unable to see the merit in any of these
examinations. Aside from summons to Bains, the motion is granted as sought.
[184] If the parties are unable to agree as to costs within 30 days, they shall so advise and I will
set out a timetable for the exchange of written submissions.
[185] Coburn may want to review these reasons with a view to assessing whether she should
abandon her underlying motion. I will therefore hold off scheduling a telephone case
conference to schedule that motion pending further word from her counsel, but expect to
receive word from him, one way or the other, no later than July 9, 2010.
Master Haberman
Date: June 10, 2010

Tab 1 - Coburn V Barber 2010 ONSC 3342

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CITATION: Coburn v. Barber et al., 2010 ONSC 3342

SUPERIOR COURT OF JUSTICE - ONTARIO

2010 ONSC 3342 (CanLII)

BEFORE: Master Haberman

COUNSEL: Certosimo, M. for the moving parties, defendants

HEARD: March 31, 2010

REASONS FOR DECISION

2010 ONSC 3342 (CanLII)

What this action is about

2010 ONSC 3342 (CanLII)

1. Allegations concerning Redfearn and MacLeod

2010 ONSC 3342 (CanLII)

2. Political pressure requiring the Mayor to set an example

2010 ONSC 3342 (CanLII)

[30] The letter from Coburn’s counsel is important. He states:

2010 ONSC 3342 (CanLII)

2010 ONSC 3342 (CanLII)

1) Whether potential conflicts were disclosed (including any ongoing relationships);

2010 ONSC 3342 (CanLII)

[50] I therefore concluded my order as follows:

2010 ONSC 3342 (CanLII)

What the City relies on

2010 ONSC 3342 (CanLII)

What Coburn relies on

2010 ONSC 3342 (CanLII)

[70] Then, at question 101-102:

2010 ONSC 3342 (CanLII)

2010 ONSC 3342 (CanLII)

I am bringing this motion because I am concerned that the individual City-related

2010 ONSC 3342 (CanLII)

elected in 2003 on a platform containing substantial anti-corruption elements.

2010 ONSC 3342 (CanLII)

The onus is on the party seeking to conduct the examination to show on a

2010 ONSC 3342 (CanLII)

2010 ONSC 3342 (CanLII)

2010 ONSC 3342 (CanLII)

2010 ONSC 3342 (CanLII)

Where a public employee is entitled under a contract of employment regardless of

...be careful to ensure that a summons to witness directed to a Minister of the

2010 ONSC 3342 (CanLII)

2010 ONSC 3342 (CanLII)

The parties’ submissions

2010 ONSC 3342 (CanLII)

[132] The City defendants also raised the following concerns:

2010 ONSC 3342 (CanLII)

Analysis and conclusions

1. Public vs. Private Interest

2010 ONSC 3342 (CanLII)

2010 ONSC 3342 (CanLII)

2. Onus under Rule 39.03

2010 ONSC 3342 (CanLII)

Any document (inducing any written document, any e-mail correspondence, or

2010 ONSC 3342 (CanLII)

3. The impact of delay - Rule 39.03(3)

2010 ONSC 3342 (CanLII)

2010 ONSC 3342 (CanLII)

2010 ONSC 3342 (CanLII)

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