COURT FILE NO.: 06-CV-033591
DATE: 2007/01/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ALAN M. RIDDELL
Applicant
Thomas G. Conway and Helen Gray, for the Applicant and for the Plaintiff in actions #06-CV-033713 and #06-CV-33954
- and -
THE CONSERVATIVE PARTY OF CANADA
Respondent
Robert E. Houston, Q.C., for the Respondent and for the Defendants in the aforesaid actions
HEARD: November 17th and November 21st, 2006
REASONS FOR DECISION
Power J.
Introduction
[1] This proceeding (hereinafter referred to as the “Application”) was commenced by Mr. Riddell on January 7, 2006. He seeks the following relief:
(a) A declaration that a binding agreement was made between the applicant and the respondent on November 25, 2005 (the “Agreement"), the terms of which are:
(i) The respondent to reimburse the applicant for receiptable expenses incurred to November 24, 2005 in the two nomination campaigns in which the applicant was involved in 2005, estimated to be approximately $50,000, which receipts are subject to verification by the respondent;
(ii) The respondent and the applicant submit to arbitration the issue of the legal costs incurred by the applicant in his successful appeals from decisions of the National Candidate Selection Committee of the respondent;
(iii) The applicant and the respondent to agree upon the arbitration process, failing which the process to be set by this court, except that there will be no obligation on the part of either party to take any steps until after the completion of the federal general election on January 23, 2006;
(iv) The applicant not to seek the respondent’s nomination in Ottawa South in the 2006 federal election nor to run as a candidate as defined in the Canada Election Act in the 2006 federal election; and
(v) The respondent to confirm that the applicant withdrew voluntarily as a candidate for nomination and was not disqualified by the respondent from running as a candidate, and that this confirmation be made publicly to the media.
(b) An Order that one of the following individuals be appointed arbitrator (the “Arbitrator”) under the Agreement:
(i) Mr. Kenneth L.W. Boland, Ogilvy Renault;
(ii) The Hon. James B. Chadwick, Q.C., Ottawa Dispute Resolution Group Inc.;
(iii) Mr. K. Scott McLean, Fraser Milner Casgrain LLP; or
(iv) Mr. Rob Nelson, Gowling Lafleur Henderson LLP;
(c) An Order directing a reference to the Arbitrator, as an officer of the court, or, alternatively, to the case management master or to the registrar, to determine the applicant’s receiptable nomination expenses pursuant to the Agreement;
(d) An Order designating the applicant as the party having carriage of the reference; and
(e) The costs of this application.
The hearing of the Application has been postponed on a couple of occasions. There have been a number of interim motions in the Application.
[2] Mr. Riddell, through Mr. Conway and Ms. Gray, has commenced two additional proceedings, the relevance of which constitutes an area of dispute between the parties in the Application. Mr. Houston, as noted above, represents the respondent in the Application and, as well, represents the defendants in these two actions.
[3] The first of the two actions is number 06-CV-033713. As aforesaid, the plaintiff is Alan Riddell. The defendants, initially, were Don Plett, Megan Gillis, the Ottawa Sun, a Division of Sun Media Corporation, and Mike Therien. On October 2, 2006, an order was made, on consent, dismissing this action on a without costs basis against all of the defendants save for Mr. Plett. I will hereinafter refer to this action as the “Plett action”. In the Plett action, Mr. Riddell claims damages as compensation for various wrongful conduct for which Mr. Plett is allegedly responsible. Mr. Plett is the President of the Conservative Party of Canada (hereinafter “C.P.C.”). These alleged wrongs may be summarized as follows:
(a) Mr. Plett, on various occasions, wrongfully attempted to disqualify, or instigated the disqualification of, Mr. Riddell as the C.P.C. candidate for the Ottawa South riding;
(b) Mr. Plett wrongfully attempted to revoke Mr. Riddell’s membership in the C.P.C.;
(c) Mr. Plett, on November 25, 2005, prior to the completion of negotiations between Mr. Riddell and the C.P.C. concerning the C.P.C.’s request to Mr. Riddell to stand aside as a candidate in favour of Mr. Allan Cutler, caused the CBC to announce in a radio broadcast that there was “a rumour that Alan Riddell had just been disqualified” as a C.P.C. candidate by the C.P.C. Riding Association of Ottawa South. Mr. Riddell alleges that Mr. Plett’s purpose was to put undue pressure on Mr. Riddell to immediately conclude negotiations and accept the financial terms for reimbursement of his nomination and other expenses that had been offered to him in consideration for his stepping aside in favour of Mr. Cutler;
(d) The aforesaid rumour was false and libellous;
(e) That, subsequent to the conclusion of the agreement between Mr. Riddell and the C.P.C. pursuant to which Mr. Riddell withdrew in favour of Mr. Cutler, Mr. Plett defamed him by advising the Ottawa Sun that “there is no agreement to pay Alan Riddell any money… Alan Riddell was never going to be the candidate in Ottawa South… Alan Riddell has been disqualified three times to run for our party in Ottawa South” and that Mr. Riddell’s stepping aside “had nothing to do with clearing the way for Cutler”;
(f) On the same day as Mr. Plett allegedly uttered the aforementioned statements, Mr. Plett and others “incited, advised or arranged for the Leader of the C.P.C., Stephen Harper, to repeat the aforementioned statements, or substantially similar statements about Riddell, to members of the National Media at a Press conference in Ottawa”;
(g) Mr. Plett’s statements constituted a breach of the aforementioned agreement;
(h) That, in making the aforesaid statements, “Plett acted maliciously, out of personal animosity towards Riddell, after careful deliberations and with intent to injure” or, in the alternative, he made them recklessly;
(i) That Mr. Plett wrongfully attempted to force Mr. Riddell to resign from a C.P.C. Committee concerned with a fund raising event; and
(j) Mr. Plett took steps to wrongfully revoke Mr. Riddell’s membership in the C.P.C.
The foregoing is a summary only – it is not intended to detail each and every claim in the Plett action.
[4] Counsel advised me on the motion that the Plett action is ready for trial. Indeed, a trial date has been set. Four weeks have been set aside for a trial commencing on February 25, 2008.
[5] On March 6, 2006, Mr. Riddell filed a Notice of Action in Court File No. 06-CV-33954. The initial title of proceedings in that action was Alan Riddell v. The Right Point, Terry Pearson, Canoe Network – CNEWS, Lorraine Turchansky, Tim Kraan, Kate Malloy, The Hill Times, 580 CFRA, Josh Pringle, David Mitchell, CTV News, Lloyd Robertson, Abbas Rana, and Stephen Harper (hereinafter referred to as the “Harper action”). The claims in the Harper action have been withdrawn against all defendants save for Mr. Harper. Stephen Harper, of course, is the Leader of the C.P.C. and the Prime Minister of Canada. The claim is for damages for various defamatory statements which allegedly occurred between December 5, 2005 and January 12, 2006.
[6] I am advised that in the Plett action a jury notice has been served but that no jury notice has been served in the Harper action. On August 25, 2006, this Court ordered that the time for service of the aforesaid Notice of Action and the Statement of Claim in the Harper action be extended to September 4, 2007, and that the Registrar “shall not dismiss the proceeding as abandoned in accordance with Rule 77.08.”
[7] On March 30, 2006, the C.P.C. delivered a Notice of Motion in the Application (revised November 8, 2006) wherein it sought the following relief:
1. An Order granting a stay of this application pending the final disposition of the Superior Court of Justice action, Alan M. Riddell v. Don Plett, Megan Gillis, The Ottawa Sun, A Division of Sun Media Corporation and Mike Therien, Court File No. 06-CV-03713 and Superior Court action re: Alan Riddell v. The Right Point, Terry Pearson et al., action no. 06-CV-33954; and
2. In the alternative an Order directing that this application and the actions referred to herein be consolidated or heard at the same time.
At the commencement of the hearing of the Application and C.P.C.’s motion before me, Mr. Houston, counsel for the respondent, advised that the C.P.C. was not seeking a stay of the Application but, rather, the alternative relief (an order directing that the Application and the two actions be consolidated or heard at the same time).
[8] On June 26, 2006, Master Beaudoin made a case management order in the Application scheduling various motions and cross-examinations and, in particular, that the “Application and the respondent’s motion to stay to be heard together on November 17, 2006.” At the commencement of the hearing of the Application and the motion I received submissions from counsel regarding whether I should hear the Application on its merits; whether a trial of an issue or issues should be directed in the Application; the order in which I should hear these submissions and, as well, the consolidation motion. Mr. Conway, on behalf of Mr. Riddell, submitted that the Court should first hear the Application on its merits. Mr. Houston, on the other hand, argued that the Court should first deal with the consolidation motion because the circumstances surrounding the alleged agreement between Mr. Riddell and the C.P.C. are central to all three proceedings; that the statements allegedly made by Messrs Plett and Harper “directly relate to the alleged agreement between Riddell and the C.P.C.” and that, accordingly, the actions and the Application “had common questions pertaining to the existence and terms of the alleged agreement between the C.P.C. and Riddell”. He also argued that, in any event, there were factual issues of a material nature common to the Application and the other actions regarding whether the alleged agreement contained a confidentiality provision and whether that term was breached, an issue which Mr. Houston submitted could not be determined on an Application in a summary way. With respect to the latter point, Mr. Houston’s submission was that, notwithstanding that several affidavits have been filed and several cross-examinations have been conducted of the deponents of these affidavits as well as other non-party witnesses, it would be inappropriate for the Court to attempt to determine the issues of law and fact without a trial. Mr. Conway’s position is that, even if there was a confidentiality provision in the agreement, which he strenuously denies, and even if the provision was breached, the breach is not a fundamental one and, therefore, the agreement stands as valid and enforceable. He also argues that, in any event, the C.P.C. at no time repudiated the agreement as a result of the alleged breach of confidentiality.
[9] After hearing counsel’s preliminary submissions I ruled that I would allow Mr. Conway to argue the merits of the Application, inclusive of the issue of whether I should decide it without directing the trial of an issue or issues, following which I would hear from Mr. Houston on these two issues as well as on his motion to consolidate all three proceedings after which I would allow Mr. Conway to respond to the consolidation motion. I was not prepared to preemptorily adjourn a hearing of the Application on its merits.
[10] Mr. Riddell brings the Application pursuant to s. 10(1) of the Arbitration Act, 1991,
S.O. 1991, c.17 which authorizes a court, on an application, to appoint an arbitral tribunal. Mr. Conway points out that the alleged agreement (hereinafter referred to, for purposes of convenience, as the “agreement”) does not specify the number of arbitrators who are to form the arbitral tribunal and that, therefore, pursuant to s. 9 of the Act, the tribunal should consist of a single arbitrator. In addition, as noted earlier, the Applicant also seeks declaratory relief in his Application.
[11] Rule 14.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a proceeding may be commenced by an application to a judge of this Court “if a statute so authorizes.” Subsection (3) of the rule provides that a proceeding may be brought by application where an application is authorized by the rules or where the relief claimed is “(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument…” and “(g)…a declaration…or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application.” As I understand it, the respondent does not object to the commencement of the proceeding by way of application but, rather, as aforesaid, objects to the Application being heard in a summary way and, as well, being heard separate and apart from the two actions.
Facts and Comments
[12] There is now no dispute between the parties concerning the fact that an agreement between Mr. Riddell and the C.P.C. was concluded, that the agreement is dated November 25, 2005, and is in the terms set out in paragraphs (a)(i), (ii), (iii), (iv), and (v) of the prayer for relief in the Application (see para. 1 of these Reasons).
[13] However, as mentioned above, there is disagreement regarding whether the agreement also included a term pursuant to which the parties must keep the terms of the agreement confidential. The respondent’s position is that confidentiality was a fundamental and essential term of the agreement. Its position is that there would have been no overall agreement but for the inclusion of a confidentiality agreement, notwithstanding that confidentiality, unlike all other terms of the agreement, was not specifically documented in any of the written correspondence between the parties. Mr. Houston submits that a proper reading of the relevant written documentation and the testimony leads to the conclusion that confidentiality was a fundamental term.
[14] Notwithstanding the respondent’s admission that an agreement was concluded, it, nevertheless, argues that the terms of the agreement referable to the arbitration and the issues to be arbitrated are vague and uncertain as are the provisions with respect to reimbursement set out in paragraph 1(a)(i) of the Application. With respect to paragraph (a)(i), it submits that there is uncertainty as to what would happen if the respondent was not prepared to verify the expenses claimed by Mr. Riddell with respect to the two nomination campaigns.
[15] I find that, despite the fact that the enforcement of the terms of paragraph (a)(i) of the Agreement could possibly lead to a dispute regarding just how much money should be paid by way of reimbursement, this paragraph is, nevertheless, enforceable. Should the parties fail to agree on quantum, they, or either of them, could ask a court to fix this amount since liability is not an issue. Paragraph (a)(i) is not void for uncertainty. A court would expect the C.P.C. to act reasonably. I would point out, however, that the relief claimed in subparagraphs (c) and (d) of the Application is premature.
[16] With respect to paragraphs (a)(ii) and (iii) it was suggested by Mr. Houston that the appeals from the disqualification orders, or two of them at least, were disposed of with orders that there be no costs and that, accordingly, an arbitrator could not make an order requiring that C.P.C. pay to Mr. Riddell the legal costs incurred by him. While I have some misgivings about this argument, the argument should be determined by the arbitrator and not by this Court.
[17] Mr. Houston also raised the fact that Mr. Riddell has, so far, failed to produce his receipts with respect to the expenses incurred in the nomination campaigns. With everything that has transpired since November 25, 2005, I am not surprised that the receipts have not been produced. Mr. Riddell’s failure to produce them is not a breach of the agreement.
[18] The evidence clearly establishes that the parties concluded an agreement on November 25, 2005 pursuant to which the applicant is entitled to be reimbursed by the respondent for certain expenses and, further, pursuant to which the parties referred to arbitration the issue of legal costs incurred by the applicant in his successful appeals. Therefore, there is absolutely no need to direct a trial of an issue or issues with respect to these provisions. There are no material facts in issue with respect to them. Similarly, there is no need to consolidate proceedings on the ground of whether there is an agreement. The agreement is between Mr. Riddell and the C.P.C., not Mr. Riddell on the one hand or Mr. Plett or Mr. Harper on the other.
[19] It is beyond doubt that Mr. Riddell had encountered considerable difficulty with some officials in C.P.C. in connection with his attempt to seek the nomination to run as the Ottawa South C.P.C. candidate in the anticipated 2005-2006 election and that a large number of people in the party generally, and in the Ottawa South riding in particular, were aware of what was transpiring in the negotiations between Mr. Riddell and C.P.C. concerning his stepping aside in order to make room for Mr. Cutler. For this and other reasons, Mr. Riddell categorically denies that there was an agreement to keep the negotiations confidential or an agreement that the result of the negotiations would be kept confidential.
[20] There is nothing, in my opinion, in the exchange of written communications between the parties at the relevant time that clearly suggests that confidentiality was a fundamental term of the agreement. I do appreciate that there was a potential for public embarrassment of both parties at the time of the negotiations and following the conclusion of the agreement.
[21] It is appropriate at this point in these reasons to set out, in detail, the relevant written and other communications between Mr. Riddell and C.P.C. or their representatives. However, by way of background, it is also important to note that by the fall of 2005 Mr. Riddell was the preferred choice of a clear majority of the members of the Ottawa South C.P.C. riding for the nomination.
[22] On the afternoon of Monday, November 21, 2005, according to Mr. Riddell, Michael Donison, the Executive Director of the C.P.C., and Don Plett, the President of the C.P.C., asked him, Mr. Riddell to voluntarily step aside as a nomination contestant in the riding in favour of a “star” candidate who they refused, at that time, to name. Mr. Riddell later learned that the star candidate was Mr. Cutler.
[23] Mr. Riddell’s version of this conversation is that he advised them that he would discuss their request with members of his campaign team and get back to them with his decision. Mr. Riddell says that, on Tuesday, November 22, 2005 he met again with Mr. Donison and advised him that he would comply with the C.P.C.’s request and immediately withdraw as a nomination contestant in favour of the star candidate on the condition that C.P.C. agree to reimburse him for the expenses which he had incurred in seeking the nomination during 2005. The following day, November 23, 2005, Mr. Riddell gave instructions to Mr. Luc Barrick, his personal legal counsel, to make a formal written proposal.
[24] The respondent’s version of the initial discussions is somewhat different. First of all, C.P.C. submits that it is important to understand what was transpiring in the party at the time. They say that it appeared certain in November 2005 that the existing government would be defeated in the House of Commons, thus necessitating a general election. Mr. Harper, Mr. Plett and other senior officials of the party were, therefore, very busy with the forthcoming election and the selection of candidates in particular. The senior party officials held the view that they did not want the national campaign disrupted by any embarrassments that might arise out of Mr. Riddell’s candidacy. It is not necessary for me to determine the full circumstances of the alleged “embarrassments”. It is sufficient, for the purpose of these proceedings, to observe that during the 2004 federal election in which Mr. Riddell was a candidate things were said about him in the press that were politically negative.
[25] In his revised affidavit of October 17, 2006, Mr. Donison deposed that he and Mr. Plett undertook discussions with Mr. Riddell on November 21, 2005 and that at that meeting Mr. Donison “advised Riddell that no-one in the leadership hierarchy of the C.P.C. wanted him to be a C.P.C. candidate in the (then) upcoming Federal Election. Plett and I strongly suggested to Riddell that he should refrain from the nomination process. Riddell advised me that he would communicate or meet with me again soon”.
[26] In paragraph 20 of his affidavit Mr. Donison deposes as follows:
I met with Riddell at approximately noon. Contrary to the statement at paragraph 5 in his affidavit, Riddell did not agree to withdraw. During our meeting (i.e. November 22) I again reiterated that it was the concerted and collective view of the officials of the C.P.C. that Riddell’s candidacy would not be in the best interest of the C.P.C. I discussed with Riddell that because of the events surrounding his candidacy in the 2004 election, never mind his conduct since, he was regarded as “damaged goods” politically. I continually had the distinct feeling that Riddell was oblivious to these obvious political realities and that he was convinced that his view of what was in the best interest of the C.P.C. was superior to the concerted and collective view of the C.P.C. itself. At the conclusion of our meeting, Riddell said that he would get back to me before the end of day.
[27] On November 22, 2005 the C.P.C. National Candidate Selection Committee met by way of conference telephone and disqualified Mr. Riddell as a candidate and, according to Mr. Donison, “the disqualification decision provided, however, that if the C.P.C. reached a settlement with Riddell, which would include his voluntary public withdrawal as a nomination contestant, then his third disqualification would be removed from the Party records and not be publicly announced”. In fact, Mr. Riddell’s candidacy had been disqualified twice earlier in the year and, on each occasion, Mr. Riddell had successfully appealed the disqualification.
[28] On the morning of November 23, 2005 Mr. Donison sent an e-mail to Mr. Riddell as follows (the following is the first of the written communications I propose to detail):
(a)
>>> mikedonison 11/23/05 11:07 <<< Dear Alan:
Please find attached my letter to you advising you on the decision made by the National Candidate Selection Committee in this matter.
This decision was only made after our discussions yesterday which did not end in a final agreement concerning the Party’s request and proposal to you that you would voluntarily agree not to be a nomination contestant for Ottawa South.
Yours truly,
Michael D. Donison
Executive Director
[29] The following written communications transpired over the next few days:
(a)
From: Mike Donison
Sent: Wednesday, November 23, 2005 1:28 PM
To: ridella@solowaywright.com
Subject:
Alan: This is to confirm our telephone conversations earlier today. I have attempted to call you twice on your cell phone but I was only able to leave a message. In case you are able to receive e-mail messages I will repeat in here what I have left as a message twice to you on your cell:
Representatives of the Party will attend at our National Party Office Boardroom at 1720–130 Albert Street at 3:30 P.M. today to meet with you and your representatives.
The only condition that we place on your representatives is that they cannot include Mr. Frank Hall (a Riddell supporter). I have suggested to you that Mr. Paul Fitzgerald be one of those representatives, but I leave that to you.
Representing the Conservative Party of Canada will be the following persons as advised:
Mr. Don Plett, President of the Party and Chair of National Council – on conference call from Manitoba.
A representative from the Political Operations department of the Party Mr. Paul Lepsoe, Legal Counsel
Myself
Unless I hear back from you to the contrary, these persons will be available at that time and place to meet with you and your representatives.
Michael D. Donison
(b)
From: Mike Donison
Sent: Wednesday, November 23, 2005 9:54 PM
To: Ray Novak (Parliament Account)
Subject: Re: …
Ray No change I think from what Ian (sic, I am) told. We thought we were close to a deal involving his voluntary withdrawal and a pledge of apport (sic, support) for Cutler. In exchange the party would agree to Third Party Arbitration on his costs claim. I insisted on a clause that no steps would be taken on the arbitration until the election was over.
Incredibly and without notice even to his representative Riddell suddenly left for the Ottawa South fundraiser indicating this would have to wait. It cannot wait and I had set as a clear term with him earlier in the day that we were only resuming discussions today on the condition this got resolved one way or the other today. He left Paul, Don, Jenni, myself. He truly is an idiot.
(c)
From: Mike Donison
Sent: Thursday, November 24, 2005 3:20 PM
To: ridella@solowaywright.com
Subject: NCSC Decision of November 22, 2005
Dear Alan:
This is to confirm I have left a message both on your cell phone and have conveyed to your representative Luc to the effect that the Conservative Party of Canada is shortly going to issue a Press Release in which it will be confirmed that on November 22, 2005 the National Candidate Selection Committee of the National Council of the Party disallowed your candidacy as a nomination contestant for the Ottawa South Conservative Electoral District Association. I went on to expressly state that the only way the issuance of that Press Release could be prevented is if you immediately and no later than 3:30 P.M. today execute and deliver the Irrevocable Decision and Direction document and properly witnessed as presented to you by Paul Lepsoe last evening.
Yours truly,
Michael D. Donison
(d)
Dear Mr. Donison,
(sent – November 24th – 4:32 p.m.)
Thank you for our meeting yesterday.
As communicated to you last night, I am prepared to withdraw from the nomination race in Ottawa South, on the following conditions:
1. if that is what the Leader wishes me to do;
2. if the Party does the honourable thing by picking up the receiptable nomination expenses incurred to date by my Nomination Campaign in the two nomination campaigns in which I have been involved this year (which I estimate to be in the amount of approximately $50,000, but which would be subject to verification by yourself); and
3. if the Party agrees to have the issue of the legal costs incurred by my lawyers in my two successful appeals arbitrated before a mutually agreeable Arbitrator or Arbitration Panel within the next few weeks, along the lines suggested by Mr. Reynolds, with the details of the arbitration to be worked out by our respective lawyers this afternoon or tomorrow.
Separately from this, I wish to confirm the following:
1. that I believe Mr. Cutler to be a good candidate for Ottawa South;
2. that I would be pleased to work for him if and when he becomes our Party’s officially nominated Candidate, in whatever capacity you or he would like me to serve, and that I will do my utmost to persuade my friends and supporters in Ottawa South to do likewise.
I want to make it very clear that my offer to work for Mr. Cutler during the upcoming election campaign is in no way conditional upon the Party’s acceptance of my proposal to resolve the matter of my nomination expenses and legal costs. I want the Party to win Ottawa South in the upcoming campaign.
I look forward to campaigning vigorously for the Party and to helping to ensure a Conservative victory in Ottawa South.
Yours very truly,
Alan Riddell
c.c. John Reynolds, Paul Lepsoe, Luc Barrick
(e)
Dear Mr. Riddell:
This is to confirm receipt of your e-mail letter dated on November 24, 2005 at 4:32 P.M.
Please consider this letter in reply by way of formal counter-offer to the offer contained in that letter:
(1) That you will immediately provide a written statement to me as Executive Director of the Conservative Party of Canada that the Party can then use publicly that you are unconditionally withdrawing as nomination contestant and as a candidate for the next federal general election and that you will not subsequently seek such status. That written statement must be executed and delivered by you and duly witnessed simultaneously upon your acceptance of this counter-offer and therefore prior to finalization of any other documentation relating to any agreement that will result. That written statement has to be forwarded to the undersigned in the same form and at the same time as the requirement below for delivery of your acceptance of this counter-offer;
(2) That the process of any Arbitration will be agreed upon by the parties without any pre-determined conditions (including any that may have been set by Mr. John Reynolds, M.P., the specifics of which have never been communicated to the undersigned) except that there will be no obligation on the part of either party to take any steps until after the completion of the impending federal general election;
(3) That paragraph 1 of your offer is to be deleted as it is not necessary;
(4) All other terms and conditions as contained in your offer are acceptable.
This counter-offer is open for acceptance with such acceptance to be communicated to the undersigned in writing at this e-mail address no later than 11:00 A.M.
Tomorrow (November 25, 2005)
Michael D. Donison
(f)
From: Luc E. Barrick
Sent: Friday, November 23, 2005 10:55 A.M.
Dear Mr. Donison:
This is to confirm receipt of your e-mail letter dated November 24, 2005 at 10:54 PM.
Please consider this letter as Mr. Alan Riddell’s acceptance of your counter-offer on the following sole condition, which is a result of the statements attributed to the party inferring that Mr. Riddell was disqualified:
That the Conservative Party of Canada shall issue today a press release stating the following: (1) that Mr. Alan Riddell is not being disqualified as a Tory candidate for the nomination in Ottawa-South but is withdrawing voluntarily as a candidate for the nomination in Ottawa-South; (2) that the Conservative Party of Canada appreciates Mr. Riddell’s significant efforts on its behalf in Ottawa-South over the past year; (3) that the Conservative Party of Canada looks forward to having him run as a candidate in subsequent elections.
Please immediately confirm to me by telephone and e-mail your acceptance of this condition, so that we may provide you with the written statement referred to in par. 1 of your counter-offer.
Time is of the essence given that many reporters are calling the Alan Riddell Team regarding the Ottawa Sun article entitled “Whistleblower to be acclaimed”, and we are going to have to respond if we do not hear from you by 11:30AM.
Yours very truly,
Luc E. Barrick
(g)
From: Mike Donison
Sent: Friday, November 25, 2005 11:16 A.M.
Dear Mr. Barrick:
Please consider this e-mail reply an acceptance on behalf of the Conservative Party of Canada of Mr. Riddell’s acceptance of the counter-offer with the sole condition Mr. Riddell requires. The Press Release that will be issued by the Party will in its wording be identical to the wording you provided in the acceptance of the counter-offer. The Press Release will say nothing more nor less than those exact words.
This acceptance is conditional on my receipt by e-mail of the written statement on the terms and conditions as set out in paragraph 1 of the counter-offer.
Michael D. Donison
(h)
From: Mike Donison
Sent: Friday, November 25, 2005 11:34 AM
To: Luc E. Barrick
Subject: RE: Voluntary withdrawal
Luc: This is to confirm from you by fax of the written statement of withdrawal that Mr. Riddell has agreed to sign. We require an additional clause that should be numbered (d) with the existing clause numbered (d) now to be paragraph (e). The additional clause has to be worded as follows:
(d) That I will not be a candidate as defined in the Canada Elections Act in the next federal general election.
(i)
From: Mike Donison
Sent: Friday, November 25, 2005 12:36 PM
To: ‘Luc E. Barrick’
Subject: RE: Voluntary withdrawal
Luc: This is to confirm that I have just now received the faxed copy of Mr. Riddell’s amendment to his withdrawal statement which is satisfactory and which the Conservative Party of Canada accepts.
Accordingly, there is now a binding agreement between Mr. Riddell and the Conservative Party of Canada.
Please provide me either by fax or e-mail scan a copy of the withdrawal letter as now agreed with Mr. Riddell’s signature (hard copy with original signature can follow later) or your solicitor’s undertaking that it will be provided to me. Once I have received either the Party will then issue the Press Release as agreed with the exact wording as agreed.
(j)
At 1:13 PM an e-mail was forwarded to Mr. Barrick as follows:
Luc, this is to confirm our telephone conversation just a moment ago in which you confirmed to me that you had a copy of the withdrawal statement with the exact wording as agreed and signed by Mr. Riddell and that you would be faxing that to me momentarily. This is also to confirm that I advised you that I had received a phone call from Liz Samson, Mr. Riddell’s secretary, advising me that even after I have received the fax withdrawal statement and signed by Mr. Riddell from you, that the agreed press release is not to be issued until I hear back from Mr. Riddell, Ms. Samson on his behalf, or yourself.
(k) At 1:35 p.m. Mr. Riddell’s secretary sent an e-mail to Mr. Donison saying, “I have instructions from Alan to advise you to go ahead with the press release as agreed. Thanks so much for alerting us as to the time of deadline.” The C.P.C. also relies on this e-mail as an example of a written exchange confirming the alleged confidentiality condition.
(l)
11/25/2005 FRI 13:36 FAX 613 236 0745 BARRICK POULSEN MGMT.
TO FAX No. 755-2001
Dear Mr. Donison,
This is to confirm the following:
(a) that I decided last night not to seek the Conservative Party of Canada nomination in Ottawa South in the upcoming federal election nor to run as a candidate as defined in the Canada Elections Act in that upcoming federal election;
(b) that I am doing so because I want to preserve Party unity in Ottawa South, and thereby ensure that we win the riding in the upcoming federal election;
(c) that consequently I will not be filing nomination papers today; and
(d) that my decision in this regard is final.
Yours very truly,
Original Signed
Alan Riddell
[30] Given the respective positions of the parties with respect to the issue of the terms of the agreement reached between them, it is apparent that the Court must consider parol evidence in order to determine just what agreement was concluded. Neither counsel objected to the use of parol evidence in these circumstances.
[31] It is the position of the respondent that a confidentiality provision should be implied from, among other things, the fact that the parties agreed on the terms of a press release to be issued by the respondent. The respondent relies, in particular, on the following extracts from Mr. Donison’s November 25, 2005 e-mail to Mr. Barrick sent at 11:16 AM:
The Press Release that will be issued by the Party will in its wording be identical to the wording you provided in the acceptance of the counter-offer. The Press Release will say nothing more nor less than those exact words.
[32] C.P.C. relies, as well, on the November 25, 2005 memo from Mr. Donison to Mr. Barrick sent at 12:36 PM where he says:
Once I have received either the Party will then issue the Press Release as agreed with the exact wording as agreed.
[33] For the record, the agreed upon press release reads as follows:
The Conservative Party of Canada confirms that Mr. Alan Riddell is not being disqualified as a Conservative Party Candidate for the nomination in Ottawa-South but is withdrawing voluntarily as a candidate. The Conservative Party of Canada appreciates Mr. Riddell’s significant efforts on its behalf in Ottawa-South over the past year and looks forward to having him run as a candidate in subsequent elections.
[34] As will be observed, by November 23, 2005 the parties had not concluded an agreement. It was the information of Mr. Donison and others in the party that one of Mr. Riddell’s supporters, in Mr. Riddell’s presence, had said “he will run even if he isn’t allowed and will embarrass Party, leader and star candidate” as he “feels this is the only way to preserve his reputation” (see exhibit 12 to Mr. Donison’s affidavit).
[35] The November 25, 2005 10:55 AM e-mail is also relied on by C.P.C. in support of its submission that confidentiality was an agreed upon provision. In particular, the C.P.C. relies on Mr. Barrick’s comment that the Party shall issue a press release. The C.P.C. also relies on the wording in the November 25, 2005 e-mail message sent by Mr. Donison to Mr. Barrick at 11:16 AM:
“the Press Release that will be issued by the Party will in its wording be identical to the wording you provided in the acceptance of the counter-offer. The Press Release will say nothing more nor less than those exact words”.
Similarly, C.P.C. relies on Mr. Donison’s November 25, 2005 e-mail message to Mr. Barrick sent at 13:36 PM.
[36] In addition to the foregoing evidence in the written documentation, the C.P.C. relies on further evidence set out in its affidavits and examination transcripts. In paragraph 30 of his affidavit, Mr. Donison deposes as follows:
A key part of the discussions concerned the manner in which his withdrawal would be communicated publically. At that time, I believed Riddell wanted the circumstances surrounding any withdrawal to remain confidential. I believed Riddell wanted to publically withdraw because the alternative (public announcement of a third disqualification) would be a public embarrassment to him.
[37] In paragraph 31 of his affidavit, Mr. Donison makes reference to the fact that Mr. Riddell later publically disclosed the “so-called “agreement””. I confess that I have some difficulty with the use of the words “so-called” given that the evidence, taken as a whole, clearly establishes that an agreement was reached even if the parties are not in agreement on the confidentiality issue.
[38] There is no dispute about the fact that Mr. Riddell did not keep the agreement confidential. After becoming aware of C.P.C.’s annoyance with Mr. Riddell’s public announcements, Mr. Riddell wrote to Messrs. Plett and Donison on December 20, 2005. In that letter he said “I write to apologize for the release to the press of two politically sensitive elements of information last week, and for the difficulties which this may have caused you, and others”. At the bottom of page 1 of that letter he also said “I also apologize for the release to the Ottawa Citizen of the e-mails between the Party and my lawyer Mr. Barrick. Neither Mr. Barrick nor I released those e-mails, nor authorized their release, to the media. Copies were released to that paper by a member of my former Campaign Team on the afternoon of Monday, December 5, 2005 because he was upset, as were others, over your public denial earlier that day that there had been any agreement respecting indemnification of campaign expenses, thereby implying that the media had been deceived several days beforehand”. Mr. Houston argues that this apology amounts to an admission by Mr. Riddell of the fact that the parties had agreed to the settlement being confidential. However, I note that in the second paragraph of his letter Mr. Riddell said “I apologize for the release of my estimate of my campaign expenses in answer to a CBC’s reporter’s direct question about this during an interview given at his request. While there was no confidentiality agreement precluding me from answering that question, and no suggestion from either of you that you wanted me to keep that figure secret, I acknowledge that with the benefit of hindsight it would have been better to have avoided the question, at least while the election was still under way”.
[39] As mentioned earlier, there have been extensive cross-examinations on the affidavits filed in the Application and, as well, persons who did not swear affidavits have been cross-examined. In addition, I was provided with transcripts of the examinations for discovery in the Plett action. The following are extracts from Mr. Plett’s examination for discovery with regard to the issue of confidentiality:
Page 229: Q. Did you, at any time during your meeting with Mr. Riddell, tell him that if you were ever quoted about the discussion, you would deny that the conversation took place?
A. I may have said that.
Q. Why would you say such a thing?
A. Because Alan Riddell assured me that this would be completely confidential, or Jerry Rice, I’m sorry, assured me that this would be a completely confidential conversation that would not go beyond the three of us.
(This question and answer were made in the context of discussions concerning Mr. Riddell’s future in the party.)
Page 311: Q. Okay. What do you remember about the meeting on November the 21st?
A. That we asked Alan Riddell to step aside.
…
Q. Tell me everything you can recall about the meeting,who started it off, what was said, what was decided, what was not decided? Tell me everything that you can remember now about that meeting?
A. That we asked Alan Cutler to step aside.
Q. Alan Riddell?
A. Alan Riddell. That we believed it was in everybody’s best interest to have a different candidate run. That there was a star candidate that had come forward. We assure Mr. Riddell that we were representatives there representing, among others, the Prime Minister, at that time the Leader of the Opposition. Ian Brodie made it quite clear that’s who he was representing when he came. We discussed some financial compensation, paying Alan Riddell’s nomination expenses.
At the end of the evening I believe Alan Riddell had agreed that he would step aside. He would produce some invoices that indicated what expenses he had had. I believe and always have believed that part of the discussion was that it would not be talked about outside of the confines of that office.
I guess that’s about the best that I can remember of what was discussed.
Q. And are you certain that that was discussed at that meeting?
A. I am certain that some of those items were discussed at that meeting. We then had another meeting that I participated in by conference call a day or two later, and some of these things may have been discussed at that meeting. So am I certain that they were all discussed at this meeting, no.
…
Page 315: Q. Okay. And then you’re certain that you discussed not talking about this outside of the office ---
A. I am quite certain that we discussed that, yes. I mean again, sir, this is now going back, I don’t know how far. I have had many meetings since then. I cannot remember verbatim what was said on November the 21st, as nobody in this room can remember exactly what they said on November the 21st of last year.
…
Page 334: Q. And what is the basis for your belief?
A. Because I believe that I said very clearly that this could not be talked about outside the confines of the office, with the exception of a very bare bones press release by the Party that Alan Riddell had withdrawn, I don’t know the exact wording, but it would be a very, very simple press release by the Party suggesting this, and that would be the end of it. And it didn’t happen that way.
So when Alan Riddell did the CBC interview in my opinion he broke the terms of the agreement.
…
Page 338: Q. Okay. Was Jenni Byrne told that she had to keep the agreement confidential?
A. I told you, sir, that in the confines of that office it is my belief that I made it clear that the agreement should be confidential.
[40] The following are relevant extracts from the transcript of the cross-examination of Mr. Plett conducted in the Application on May 9, 2006:
Page 5: Q. If you have any understanding.
A. It is my firm belief that Mr. Riddell broke an agreement, and so there is no agreement with Mr. Riddell.
Q. And how do you understand Mr. Riddell broke the agreement?
A. When we made an agreement with Mr. Riddell I said it was contingent on him not going to the media about the agreement that we had.
[41] The following are relevant extracts from the cross-examination of Don Plett conducted on August 9, 2006:
Page 312: A. … At the end of the evening [i.e. November 21] I believe Alan Riddell had agreed that he would step aside. He would produce some invoices that indicated what expenses he had had. I believe and always have believed that part of the discussion was that it would not talked about outside of the confines of that office.
I guess that’s about the best that I can remember of what was discussed.
[42] The following are relevant extracts from the August 3, 2006 cross-examination of Michael Donison in the Application:
Page 298: BY MR. CONWAY:
Q. But Mr. Riddell never actually told you directly that he wanted the circumstances surrounding any withdrawal to remain confidential?
A. I don’t recall him using those exact words. It was obvious throughout the discussions that both parties did not want to this to reach the newspaper, Mr. Conway.
Q. So you didn’t -- so again, I guess that question (sic, answer) is no, he never did tell you?
A. He never -- I do -- no, I do not recall ---
Q. Okay?
A. That’s not my evidence.
Q. Okay, you don’t recall?
A. I do not recall Mr. Riddell to me saying expressly to me in those exact words what you’ve just interpreted. That, I do not recall. He may have.
Q. And Mr. Barrick never told you as far as you can remember that Riddell wanted to keep the circumstances surrounding his withdrawal confidential?
A. I can’t recall. He may very well have. I wouldn’t be surprised if he did.
…
Page 312: Q. Mr. Donison, you’ve said that it was a -- the confidentiality was a fundamental term or that the, excuse me, just to make sure that I’m quoting correctly, you said that with respect to paragraph 39 of your Affidavit March 27th ---
A. Yes.
Q. --- that throughout the negotiations it was understood that the terms of the above were to be kept confidential and the only public statement to be that contained in the press release?
A. Yes, that’s what that says.
Q. And the press release is the press release that we reviewed prior to the lunch break that you crafted and that is found as -- I guess it’s an exhibit---
A. I think it’s Exhibit 25 of my Affidavit, I believe.
Q. Yes, thank you. Exhibit -- that's the press release that’s referred to in your -- in paragraph 39 of your March 27 Affidavit?
A. Yes.
Q. And you talked about, you made references to the e-mail evidence that you say confirms that ---
A. Yes.
Q. --- understanding and you said further that this understanding was a fundamental term of the agreement?
A. I said that, yes.
[43] As mentioned earlier, there has been extensive cross-examination on the affidavits filed in the Application. As well, persons who did not swear affidavits have been cross-examined. Mr. Houston relies, in particular, on evidence given by Mr. Plett during his cross-examination where he testified that, on November 21, 2005 he warned Mr. Riddell that any agreement which the C.P.C. might negotiate with him would have to be “contingent on him not going to the media”.
[44] In support of its confidentiality argument the C.P.C. also relies on a letter dated December 21, 2005 from Mr. Riddell to Mr. Plett in which Mr. Riddell said he was “prepared to sign a confidentiality agreement to keep all matters agreed to confidential”. That offer has nothing to do with the issue regarding whether the November 25, 2005 agreement was subject to a confidentiality agreement.
[45] In his April 3, 2006 affidavit, Mr. Riddell comments at some length on Mr. Donison’s affidavit sworn March 27, 2006. He deposes that the suggestion in Mr. Donison’s affidavit that confidentiality was a term of the agreement was raised for the first time in Mr. Donison’s affidavit, some four months after the conclusion of the agreement, and that the allegation of Mr. Riddell’s breach of the agreement was also raised for the first time in Mr. Donison’s affidavit. Mr. Riddell deposes that there was never, as alleged, any understanding that the terms of the agreement would be confidential. In paragraph 6 of his affidavit, Mr. Riddell deposes as follows:
“At the outset of our negotiations Mr. Barrick and I made it abundantly clear that Mr. Donison would be negotiating collectively with a group and not privately with a single individual, over the course of that week.”
He went on to state that, indeed, they advised Mr. Donison that they could not give him an answer to his proposal until they consulted with their campaign team that evening, a team, which, at that time, was composed of more than fifteen individuals.
[46] Mr. Riddell submits that, by the time the final agreement was concluded on November 25, 2005 there was at least thirty people at his end who knew most, or at least some, of the terms and “an equal number, I am sure, at Mr. Donison’s end who were similarly situated” (see paragraph 9 of his affidavit). Mr. Riddell argues that Mr. Donison is a trained lawyer who should have known that if confidentiality was a condition, it should have somehow been documented.
[47] Mr. Riddell, on Friday November 25, 2005 after concluding the agreement, issued a press release as follows:
Press Release
Friday November 25, 2005
ALAN RIDDELL CAMPAIGN
RIDDELL BOWS OUT OF OTTAWA SOUTH RACE FOR PARTY UNITY
Ottawa---Alan Riddell decided last night not to enter the Ottawa South nomination race and to throw his support behind Allan Cutler.
Riddell said, “Given the overwhelming support that I enjoy from the Ottawa South riding executive and membership, my withdrawal from the nomination race is the only way of ensuring that Allan Cutler could stand as our candidate in Ottawa South. The Party knows that I signed up 705 of my supporters to vote for me at next week’s Nomination Meeting and some officials were worried that I would beat Mr. Cutler in a contested race.
Riddell believes that the the “disqualification” story which appeared in this morning’s Ottawa Sun is the result of overly nervous party officials facing an impending federal election.
Riddell went on to say, “Their worries were totally misplaced. I am a loyal Conservative and Team Player and last night I chose to avoid a divisive nomination race, which could only weaken our Party on the eve of an important national election. Mr. Cutler is a great Candidate who is going to help our Party win seats across Ontario, and as a loyal Party member I feel that it is the duty of all good Conservatives to get behind him.”
Riddell was puzzled by media reports that he was disqualified from running. He said, “Media reports of my disqualification are untrue. On August 8th a high ranking party committee, with binding authority over who can be a Candidate formally ruled that I could run in Ottawa South and eight days later, on August 16th, Mr. Harper’s current chief of staff, Ian Brodie, confirmed in writing that the decision would be respected.”
Based on that promise, Riddell and his team of 250 volunteers began an active campaign, in September, which culminated in a very successful event this past Wednesday evening, which was attended by deputy party leader Peter MacKay and several other Party MP’s.
Riddell is a longstanding Party worker and a consummate team player. He is encouraging his team to support Allan Cutler.
Riddell said, “The important thing is to beat the Liberals in as many seats as we can, and if that requires my stepping aside for Mr. Cutler in Ottawa South, so be it. I look forward to doing my utmost, with my election machine, to help ensure that Mr.Cutler wins Ottawa South…”
Glenn Roberts
Riddell Campaign Spokesman
612-4974
Legal Submissions and Comments
Failure to Include a Specific and Clear Provision Concerning Confidentiality in the written Agreement
[48] Mr. Conway submits that agreements such as the one with which we are here concerned are not subject to an implied term of confidentiality and that if a party wishes to insert a term of confidentiality, such a term must be negotiated. He relies on the decision of Sedgwick J. in Abouchar v. Conseil scolaire de langue française d’Ottawa-Carleton – Section Publique, (2002), 58 O.R. (3d) 675 (S.C.J.). In Abouchar, Sedgwick J. held that a non-disclosure clause was not an implied condition of a settlement concluded by parties to litigation between them. The defendants had made a comprehensive offer to settle two wrongful dismissal actions and four human rights complaints brought by the plaintiff in consideration of a substantial monetary payment. The exact content and wording of the release were not set out in the offer to settle. The defendant subsequently presented the plaintiff with a draft release containing a non-disclosure clause. The plaintiff objected to signing the release with a non-disclosure clause. While I take no issue whatsoever with Sedgwick J.’s conclusions in Abouchar, the facts are clearly distinguishable from the case at bar. However, the principle (ratio) of the decision is relevant. At paragraph 11, Sedgwick J. said:
When, on June 30, 1999, the plaintiff accepted the defendants’ offer to settle, the parties also agreed that the plaintiff would also execute a “final and complete” release (para. 3) with no further details being discussed. The terms of the release must be in accord with the offer to settle that was accepted by the plaintiff. In my view, a “complete and final” release does not entail the inclusion of a non- disclosure clause. Such clause does not constitute by necessary implication a term of the settlement reached by the parties. The gist of a “complete and final” release is for the plaintiff to discharge the defendants (and other persons referred to therein) from any action, complaint, claim, indebtedness, etc. In my opinion, the non-disclosure clause is not part and parcel of a release. If one wishes to insert one, it must be negotiated.
[49] As aforesaid, the issue in this Application is different. Here, the argument advanced by the respondent is that, indeed, the parties did agree to a confidentiality term. Mr. Conway relies on the Ontario Court of Appeal’s decision in Consortium Developments (Clearwater) Ltd. v. Sarnia (City) 1996 CanLII 1905 (ON C.A.), (1996), 30 O.R. (3d) 1 (C.A.) for the proposition that confidentiality will be an implied term of an agreement only where it is required to give business efficacy to the agreement and that, in this case, the agreement in question did not need to be confidential. Again, this case does not help me in determining just what was the agreement between the parties. However, I will return to this decision when I deal with the question regarding whether, if there was a confidentiality clause, a breach thereof justifies a complete repudiation of the agreement by the respondent. At that time I will also refer to Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (S.C.C.), [1989] 2 S.C.R. 574, where the Supreme Court of Canada held that an implied term of confidentiality will be read into an agreement only where the information conveyed is itself inherently confidential, where the information was communicated in confidence, or where the information is misused by the party to whom it was communicated.
Material Facts and Credibility
[50] Mr. Houston argues that there are material facts in issue regarding the terms of the agreement of November 25, 2005 and whether Mr. Riddell breached the alleged confidentiality provision of the agreement. He submits that the declaratory relief sought by the applicant requires a determination of law and/or mixed fact and law and, therefore, this Court should heed the same precautions and prudence imposed on courts hearing motions under Rules 20 and 21. First of all, he argues that there is no complete factual underpinning upon which the Court can reach an informed decision and, of course, he submits that there are many credibility issues that can be resolved only following a full trial. In substance, Mr. Houston equates the role of a judge hearing this Application to that of a judge hearing a motion under Rules 20 or 21. I do not accept this analogy as correct. The relief sought by Mr. Riddell in his Application is not subject to the same rules that are applicable to Rule 20 and 21 motions. I accept that under Rule 21 a moving party must demonstrate that there is no genuine issue of material fact requiring a trial and that, where there is a genuine issue with respect to material facts, the case should be referred to trial and not be determined in a summary judgment motion.
[51] It is necessary to examine the provisions of Rule 14. The rule provides that a legal proceeding “shall be commenced by the issuing of an originating process.” The general rule is that proceedings in the court “shall be by action, except where a statute or these rules provide otherwise.” “Actions” are commenced by either a Statement of Claim or a Notice of Action. The rule provides that a proceeding may be commenced by an application to this Court “if a statute so authorizes”. Here, the relevant statute is the Arbitration Act, 1991.
[52] Section 9 of the Act provides that:
“If the arbitration agreement does not specify the number of arbitrators who are to form the arbitral tribunal, it shall be composed of one arbitrator.”
[53] Section 10 of the Act states as follows:
10. (1) The Court may appoint the arbitral tribunal, on a party’s application, if,
(a) the arbitration agreement provides no procedure for appointing the arbitral tribunal; or
(b) a person with power to appoint the arbitral tribunal has not done so after a party has given the person seven days notice to do so.
[54] As observed above, Rule 14 also provides that applications may be commenced where authorized by the Rules. The relevant part of Rule 14.05(3) reads as follows:
(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;
(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;
(h) in respect of any matter where it is unlikely that there will be any material facts in dispute.
[55] It is important to observe that a proceeding may be brought by way of application where it is “in respect of any matter where it is unlikely that there will be any material facts in dispute” (see (h) above). It would not be appropriate to apply this subsection to all of the other subsections because this would render meaningless the rights specified under both subsection (h) and the other subsections. This, of course, does not mean that the courts do not have a discretion to direct the trial of an issue where the circumstances are such that the court can either not make a finding of facts based on the materials before it or where it would be dangerous or unwise to do so.
[56] In McKay Estate v. Love, (1991), 6 O.R. (3d) 511 (Ct. J. (Gen. Div.)) Steele J. granted an application by an estate executor for approval of the sale of the estate lands pursuant to Rule 14.05(3) (a), (b) and (f) and s. 61 of the Trustee Act, R.S.O 1980, c. 152 [now R.S.O. 1990, c. T-23] notwithstanding opposition by one of the estate beneficiaries. The objecting beneficiary argued that there were material facts in dispute and that, accordingly, the court had no authority to entertain the application.
[57] Steele J. held at paragraph 6 that:
“In my opinion, that [whether rule 14.05(3) should be exercised where there were material facts in dispute] would impose para. (h) as a condition to hear any matter under the preceding paragraphs. This would be clearly contrary to the disjunctive wording of subsection (3). I believe that the court has power to hear an application under paras. (a) to (g) inclusive, even if there are material facts in dispute. This does not mean that in an appropriate case the court may decide to direct the trial of an issue, or otherwise deal with the application.”
[58] As will be noted, I agree with Steele J’s reasoning. Steele J.’s decision was appealed to the Ontario Court of Appeal. The Court agreed with his disposition of the application (that the circumstances in the case demonstrated overwhelmingly that the price for the property obtained by the executor was the best that could be obtained). The court did not specifically deal with the issue of whether Steele J. should have exercised jurisdiction in the application notwithstanding the argument that material facts were an issue (see (1991), 6 O.R. (3d) 519 (C.A.)).
[59] As aforesaid, in this Application a number of affidavits have been filed by the competing parties and, as well, a number of cross-examinations have taken place of various witnesses made up of persons who swore affidavits or acted as sources of information. In addition, I ruled on the hearing that the parties could also refer to extracts from the examinations for discovery in the Plett action. In the peculiar circumstances of this Application, I am satisfied that the parties have had a generous opportunity to place the evidence supporting their case before this Court. I am satisfied that there is no dispute between the parties concerning the existence of an agreement between them. There is, however, a serious dispute concerning whether confidentiality was a term of the agreement.
[60] In his factum filed on the respondent’s motion to consolidate the proceedings, counsel for the respondent, who, of course, also represents Messrs. Plett and Harper in the two actions, argues that the issue regarding whether an agreement was concluded is common to all three proceedings as is the issue regarding whether there was a breach of agreement. In support of his position, counsel relies on, among other things, the following wording contained in a Notice of Motion delivered by Mr. Riddell in the Harper action in which he sought an order to extend time to serve the Statement of Claim: “There is a related action currently proceeding against Don Plett President of the National Council of the Conservative Party of Canada. This action bears court file number 06-CV-033713 (“Plett action”). The Plett action contains allegations of defamation similar if not almost identical to those in the within action arising at or about the same time.”
[61] Counsel for the respondent makes the following statement in paragraph 22 of his factum:
It is the position of the C.P.C. that the central issue in all three matters is the question of existence and terms of the agreement between Riddell and C.P.C. and whether the Agreement was to be kept confidential.
[62] At paragraph 55 of his factum, counsel observes that, “On the Application, it will be the position of C.P.C. that the determination of the question of confidentiality will rest upon the credibility of Riddell. Therefore the credibility of Riddell is a critical component of the C.P.C.’s position.” He then goes on at paragraph 56 to state, “The context in which the alleged Agreement was negotiated, including background information pertaining to Riddell and the C.P.C., are important factual elements which will be placed before the court in both Actions and the Application.”
[63] The respondent’s factum filed on the Application states that the C.P.C. does not dispute that there was an agreement between Mr. Riddell and the C.P.C. However, paragraph 39 of the factum reads as follows:
The parties disagree as to the terms of the agreement. Particularly, they disagree with the terms referable to the arbitration and the issues to be arbitrated.
In other words, C.P.C.’s position is that, in addition to the issue concerning whether confidentiality was a term of the agreement, there is also disagreement with “the terms referable to the issues to be arbitrated.” This latter disagreement, in my opinion, is one involving the interpretation of the agreement and, therefore, is clearly within my jurisdiction to decide.
[64] I observe that in applications brought to this Court for oppression remedies under the Business Corporations Act, R.S.O. 1990, c. B.16 the Court frequently disposes of such applications without directing the trial of an issue or issues where there are factual and/or credibility issues to be determined.
[65] As aforesaid, Mr. Riddell brings this Application pursuant to sections 9 and 10 of the Arbitration Act, 1991. I find that the agreement between the parties is an “arbitration agreement” within the meaning of the Act, that is “an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them.” The matter to be arbitrated is as follows:
“the respondent and the applicant to submit to arbitration the issue of the legal costs incurred by the applicant in his successful appeals from decisions of the National Candidates Selection Committee of the respondent.”
[66] The agreement also contains a provision pursuant to which, should they be unable to agree on procedure, the process will be established by the Court. The parties have not been able to agree on process.
[67] I have struggled with the question of whether I should attempt to resolve this issue given the extensive evidence now before me. However, I have concluded that it would be inappropriate for me to make findings of fact on the confidentiality question. Firstly, there are issues of credibility of a material nature. Secondly, I have not had an opportunity to personally observe the witnesses give their testimony. Thirdly, either party may wish an opportunity to call further evidence on this issue. There are witnesses who have not yet testified who might have evidence to give on this issue.
[68] My conclusion to refrain from determining whether confidentiality was a term of the agreement between the parties does not, however, preclude me from granting relief to the applicant in his Application on the assumption, of course, that a breach of the confidentiality provision does not amount to a breach of a fundamental term of the agreement.
[69] For the reasons that follow later, I conclude that, even if the parties agreed to a confidentiality provision, a breach of such a provision does not constitute a fundamental breach of contract that would entitle the C.P.C. to repudiate the entire agreement. Accordingly, Mr. Riddell is entitled to the bulk of the relief claimed in his Application.
[70] Therefore, in the event that one or both parties’ wishes/wish a Court determination of the issue of whether the agreement between them included a confidentiality provision, he, it, or they may proceed to the trial of such an issue before another Judge of this Court. If there is a request for a trial of this issue, the C.P.C. shall be designated the plaintiff at the trial and Mr. Riddell shall be designated the defendant. The materials before this Court filed in the Application at this time shall constitute the Record provided that both parties to the issue shall be permitted to demand affidavits of documents from the other and shall be permitted to conduct further cross-examinations of each other in order to explore any issues not already dealt with in full in the already completed cross-examinations.
[71] The parties have not specified the number of arbitrators. Accordingly, the tribunal will be composed of one arbitrator. As well, the parties have not been able to agree on a choice of a single arbitrator. Mr. Riddell, in his Notice of Application, seeks an order “that one of the following individuals be appointed arbitrator:”
(v) Mr. Kenneth L.W. Boland, Ogilvy Renault;
(vi) The Honourable James B. Chadwick Q.C.;
(vii) Mr. K. Scott McLean, Fraser Milner Casgrain LLP; or
(viii) Mr. Rob Nelson, Gowling Lafleur Henderson LLP;
Counsel have advised me that the Honourable James B. Chadwick will not be available to act as arbitrator. Accordingly, I order that, in the event that within 30 days from the release of this decision the parties have not been able to agree to the appointment as arbitrator of one of Messrs. Boland, McLean or Nelson, assuming Mr. Boland is willing to act, Mr. Boland be appointed as sole arbitrator under the agreement. In the event that Mr. Boland is not prepared to or is not able to act as arbitrator, Mr. McLean shall be appointed. In the further event that Mr. McLean is unwilling or unable to act, Mr. Nelson shall be appointed. If none of the aforesaid persons is willing or able to act, either party may apply to me for the appointment of a substitute nominee.
Multiplicity of Proceedings/Consolidation
[72] Obviously, if possible, multiplicity of proceedings should be avoided. (see section 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43).
[73] Rule 6.01(1) bestows on a court the discretion to consolidate proceedings where two or more proceedings are pending in the court and it appears that:
(a) they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason an order ought to be made under this rule.
[74] As aforesaid, there are some common questions of law or fact and some of the relief claimed arises out of related occurrences. I accept as accurate Mr. Houston’s submission that non-jury proceedings may, in appropriate circumstances, be consolidated with a jury proceeding and that defamation actions can be consolidated with other causes of action. Therefore, the fact that the Plett action involves a jury and that both actions include defamation claims, does not prevent me from making a consolidation order.
[75] On behalf of Mr. Riddell, it is argued that he has a statutory right to a summary adjudication of his Application and, in particular, because of the terms of the agreement, has a right to have his Application determined before the calling of the next federal election. Counsel for Mr. Riddell also argues that it would be inappropriate to join the Application with the Plett action because of the jury notice. He submits that a jury could not decide the request for declaratory relief in the Application and that, therefore, consolidation would be problematic. With respect to the suggestion of multiplicity of proceedings, he submits that once the issues in the arbitration are resolved, the complexity and length of trial of the actions would be reduced.
[76] I am not persuaded that it would be an appropriate exercise of my discretion in these circumstances to order consolidation. The relevant circumstances are as follows:
(a) The Local Master, exercising his case management role, ordered that the Application be heard on November 17, 2006;
(b) On November 17, 2006 the parties were attempting to obtain a trial date in the Plett action given that all pre-trial proceedings had, apparently, been completed;
(c) Following the hearing on November 17 and 22, 2006 I was advised that the parties had received notice from the Court that a trial date had been set – February 25, 2008;
(d) The Court, as mentioned above, recently ordered, in the Harper action, that “the time for service of the Notice of Action and the Statement of Claim” be extended to September 4, 2007.
(e) The Application was commenced in January 2006, and
(f) Consolidation, in these circumstances, will not avoid unnecessary expense and/or delay.
[77] The bottom line is that I am not satisfied that the balance of convenience will be served by a consolidation order. Indeed, given the timing and scheduling of the three proceedings, the balance of convenience clearly favours Mr. Riddell. Messrs. Harper and Plett, of course, are not named parties in the Application. Notwithstanding the common features between the Application and the actions and, notwithstanding the fact that Mr. Houston represents the C.P.C. as well as Mrs. Harper and Plett, I doubt whether my decision in the Application will be res judicata insofar as Messrs. Harper and Plett are concerned or that the doctrine of issue estoppel would apply. In reaching my decision to refuse consolidation I have read the authorities provided to me by counsel and, in particular Anderson J.’s decision in Reichmann v. Toronto Life Publishing Co., (1988), 66 O.R. (2d) 65 (H.C.J.). Notwithstanding that the cases call for a liberal interpretation of Rule 6, I am of the opinion that, as aforesaid, the balance of convenience weighs against consolidation in these matters.
Did the C.P.C. attempt to repudiate the agreement?
[78] Mr. Conway argues that there is no evidence of a repudiation of the argument by C.P.C. prior to the commencement of the Application. He also argues that, even if there was an attempted repudiation, the attempted repudiation was without legal consequences because C.P.C. is limited to a claim for damages as compensation for the alleged breach of contract. He submits that, in any event, there is no evidence of any damage because of the alleged breach and, indeed, no claim for damages has been pursued.
[79] There is no evidence before the Court that clearly contains an attempt in writing by the C.P.C. to repudiate the agreement. The C.P.C.’s position is that its statements made to the news media following its becoming aware of Mr. Riddell’s press releases and communications to third parties to the agreement that “there is no agreement to pay Alan Riddell …” should be interpreted as an act of repudiation. I cannot and do not accept this argument as reasonable in light of the facts. If C.P.C.’s position at the relevant time was that it had a right to repudiate the agreement because of Mr. Riddell’s alleged breach, it should have said so in clear language. It did not do this.
[80] The following exchange of questions and answers on Mr. Donison’s August 3, 2006 cross-examination is instructive on this issue:
Q. Right. And what else was he supposed to do?
A. He was not to say anything further to anyone and particularly the media beyond the wording of the press release that his lawyer, Mr. Barrick, and I – and he agreed to. That’s what he breached.
Q. And has the Conservative Party elected to rescind the agreement then?
A. I don’t know, I think that’s a conclusion of law, Mr. Conway. I don’t know what you mean by elect to rescind.
Q. Well, I’m suggesting that the Conservative Party has not given any notice of intention to rescind the agreement?
A. We’ve given notice in these proceedings.
Q. No, you have not given any notice of your intention to rescind the agreement?
A. Well, I don’t know what – even as a lawyer, I don’t understand what you’re talking about.
Q. You don’t?
A. No. It has been communicated to your client ---
MR. HOUSTON: It’s okay. It’s okay.
BY MR. CONWAY:
Q. When did the Conservative Party decide that it was going to rescind the agreement?
A. When, to my knowledge -- to my knowledge, Mr. Conway, the decision of the Conservative Party that there was now no agreement because it had been breached by your client was upon reviewing, upon the broadcasting of the interview with him on CBC news on December 2nd.
Certainly by that point it was clear to the Conservative Party of Canada that he breached the agreement.
Q. And you would agree that the Conservative Party did not communicate its decision to treat -- to consider there be no agreement?
A. No, I’m not ---
Q. In December 2006?
A. I don’t agree with that at all.
Q. You don’t? Well, where is the notice that was given? What communication was given to Mr. Riddell?
A. There were all kinds of statements which you yourself have made much about in the media and which statements were made by officials of the Conservative Party of Canada to the effect that there was no agreement.
Q. And you say that constitutes notice to Mr. Riddell?
A. No, I told you it was a communication.
Q. I’m asking you specifically, how and when did the Conservative Party of Canada communicate to Mr. Riddell that it took the position the agreement was at an end?
A. I don’t know the precise date.
Q. Well, did it at all?
A. Well, it must have because your client issued a writ. The precise time when it was – notice was given to him and by whom and under what circumstances.
(OFF RECORD DISCUSSION)
BY MR. CONWAY:
Q. So it was some time before the Notice of Application was issued, you’re saying?
MR. HOUSTON: No, that’s not what he’s saying.
THE WITNESS: No, that’s not what I’m saying.
BY MR. CONWAY:
Q. Well, what are you talking about, when the writ issued?
A. No, I didn’t ---
Q. Okay, I’ll ask you again because I ---
A. Just ask the question. I ---
Q. Yes, I would like an answer to that question as to when the Conservative Party of Canada communicated to Mr. Riddell that it considered itself not to be bound by the agreement?
A. I can’t recall exactly when.
Q. Well, approximately when, if you can’t ---
A. I can’t even recall approximately when.
Q. You can’t recall approximately?
A. No.
[81] The following further exchange of questions and answers contained in Mr. Conway’s Supplementary Transcript Compendium of the Applicant is also helpful on this issue:
Q. All right. Well, maybe not. So when do you find out that the agreement is breached?
A. The first time a fax came to my attention that – which in my view would have constituted a breach of the agreement, as I recall it, I could be wrong on the date, I think it was the evening of December the 2nd.
Q. 2005?
A. 2005. After the election was commenced, or into the writ period, I received a call from Doug Finley, as I recall. And now, clearly it was from Doug because Doug said to me something along these lines. Apparently, Riddell has been interviewed and will be appearing on CBC news tonight talking about the agreement we reached with him.
Q. And when did you conclude that there had been a breach of the agreement?
A. The second Mr. Finley said that to me and do you want me to tell you, Mr. Conway, I remember this part like it was yesterday, do you want me to tell you what was going through my mind, what I immediately thought when Mr. Finley told me that? Would you like me to tell you?
Q. Well, what I’d like you to do is just answer my question?
A. Okay. Well, to answer your question, I think I have to -- you asked me what was your reaction to that.
Q. No, I didn’t. I asked you when you concluded that the -- that a breach of the agreement, a fundamental term of the agreement had been breached and you said on December the 2nd, 2005. I just want to get the time line down?
A. The moment Mr. Finley said that to me, my immediate – let’s put it this way, my immediate thought was, if what Doug is telling me is true, then we have a breach.
Q. All right?
A. So I would have determined it at that point, yes.
Q. Okay?
A. In my own mind.
Q. And now show me where you put Mr. Riddell on notice of the breach?
A. I did not do so. I think the Party did.
Q. No, you didn’t. You didn’t, sir?
A. No, I wasn’t ---
Q. You didn’t put him on notice of the breach?
A. I didn’t, no.
Q. No?
A. No, I didn’t.
Q. And who did?
A. I don’t know.
Q. What do you mean, you don’t know?
A. I don’t know.
Q. Well, you’re the representative of the Conservative Party?
A. Mr. Conway, you asked me a question, did I --
Q. Well, you ---
A. --- in writing put Mr. Riddell on notice.
Q. You didn’t put Mr. Riddell on notice?
A. I did not do so.
Q. No?
A. No.
Q. Not verbally, not in writing?
A. I can’t – certainly, no, because I didn’t speak to them, no, so I didn’t –
Q. You didn’t put him on notice in December of 2005, did you?
A. Not in written notice, no.
Q. You didn’t put him on notice in January 2006?
A. Not to my knowledge, no.
Q. You didn’t put him on notice in February 2006?
MR. HOUSTON: Don’t answer any other questions. We’re into litigation at that point.
BY MR. CONWAY:
Q. You didn’t put Mr. Riddell on notice until -- well, you never put him on notice, did you?
A. I personally never said -- sent anything in writing to Mr. Riddell or someone on his behalf telling him that I considered it a breach.
Q. And no one on behalf the Conservative Party of Canada put Mr. Riddell on notice in December 2005?
A. Oh, I can’t answer that, I don’t know.
Q. No one put Mr. Riddell on notice from the Conservative Party in January 2006?
A. I cannot say.
Q. No one put -- no one ever gave notice to Mr. Riddell prior to the commencement of this litigation that there had been a breach of a fundamental term of the agreement?
A. I cannot say yes or no to that.
[82] In light of the aforesaid answers, I conclude that there was no repudiation of the agreement and that, therefore, C.P.C.’s reliance on an alleged breach is nothing more than the raising of a possible defence to the Application at the time of its response to the Application.
[83] I have not been satisfied that there is any reasonable explanation for C.P.C.’s failure to notify Mr. Riddell that the C.P.C. considered his conduct to be in breach of the agreement.
Did the applicant breach a fundamental term of the agreement?
[84] However, it is clear that Mr. Riddell did issue press releases and other communications concerning the terms of the agreement. The issue that I must now deal with is, assuming a confidentiality arrangement, whether this conduct constitutes a fundamental breach of contract that would render the agreement unenforceable by Mr. Riddell. I note that C.P.C. does not argue that Mr. Riddell was in breach of any other obligation under the agreement.
[85] The Supreme Court of Canada in its decision in Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (S.C.C.), [1999] 3 S.C.R. 423 explained the distinction between rescission and repudiation. The Court said:
Rescission is a remedy available to the representee, inter alia, when the other party has made a false or misleading representation …(para. 39)
Repudiation, by contrast, occurs “by words or conduct evincing an intention not to be bound by the contract.” (para. 40)
[86] The Court then went on to say:
Contrary to rescission, which allows the rescinding party to treat the contract as if it were void ab initio, the effect of a repudiation depends on the election made by the non-repudiating party. If that party treats the contract as still being in full force and effect, the contract
“remains in being for the future of both sides. Each (party) has a right to sue for damages for past or future breaches” (emphasis in original): Cheshire, Fifoot and Furmston’s Law of Contract (12th ed. 1991), by M.P. Furmston at p. 541.
If, however, the non-repudiating party accepts the repudiation, the contract is terminated, and the parties are discharged from future obligations. Rights and obligations that have already matured are not extinguished. Furmston, supra, at pp. 543-44. (para. 40)
[87] Cameron J. of this Court in Reichmann v. Vered, [2000] O.J. No. 4194 (S.C.J.), following Guarantee held that:
If the innocent party treats the contract as still being in full force and effect, … The parties then have the right to sue for damages for past or future breaches. (para. 211)
[88] In my opinion, the crux of the agreement between the parties was that Mr. Riddell, the leading contender for the nomination, agreed to voluntarily step aside in favour of Mr. Cutler in exchange for which he was to receive some financial compensation for expenses incurred by him in seeking the nomination and in his challenges to the attempts by some members of the C.P.C. to disqualify him from running. The agreement provided that he could pursue this latter claim through arbitration.
[89] Confidentiality could not have been a major factor given that there had already been considerable press activity with respect Mr. Riddell’s candidacy and the attempts to disqualify him and given the fact that numerous people on both sides of the table were privy to what was going on. A breach of the alleged confidentiality provision, I am satisfied, did not deprive C.P.C. of an essential term of the agreement. There is nothing in the discussions between the parties that can be said to be inherently confidential. There is no evidence or argument before this Court to suggest that there is anything illegal about one possible candidate stepping aside to make room for another even in circumstances where the political party agrees to compensate the former for his expenses in seeking a nomination.
[90] I also find it significant that C.P.C., on November 23, 2005, while the discussions were ongoing, was complicit in, once again, having Mr. Riddell disqualified as a candidate because a final agreement had not been concluded the previous day. As well, on November 24, 2005, Mr. Donison advised Mr. Riddell by e-mail that:
“the Conservative Party of Canada is shortly going to issue a Press Release in which it will be confirmed that on November 22, 2005 the National Selection Committee of the National Council of the Party disallowed your candidacy as a nomination contestant for the Ottawa South Conservative Electoral District Association. I went on to expressly state that the only way the issuance of the Press Release could be prevented is if you immediately and no later than 3:30 p.m. today execute and deliver the Irrevocable Decision and Direction document and properly witnessed as presented to you by Paul Lepsoe last evening.”
[91] In Sail Labrador Ltd. v. Challenge One (The),
1999 CanLII 708 (S.C.C.), [1999] 1 S.C.R. 265 Bastarache J., speaking for the majority of the court, said the following at paragraph 31:
The failure in performance must substantially deprive the other party of what was bargained for. This concept is referred to as substantial non-performance or as a requirement that a breach go to the “root” of the contract. In English legal literature, the expression “substantial failure” is used. If this minimum standard is not met, rescission will not be available to the non-offending party. This party will be forced to settle for a remedy in damages.
Notwithstanding that these remarks concern a right of rescission, they apply to the case at bar. As aforesaid, the confidentiality provision did not “substantially deprive the other party of what was bargained for”.
[92] In Reichmann v. Vered at paragraph 212, the court had this to say:
Repudiation occurs when conduct constituting a breach of contract is so “serious” as to be “a breach of condition” which is of “fundamental importance to the parties” and “goes to the root of the contract”. See S.M. Waddams, The Law of Contracts, 4th ed., Toronto, Canada Law Book, 1999, at ss. 590-595 and G.H.L. Fridman, The Law of Contract in Canada, 4th ed., Toronto, Carswell, 1999 at pp. 598-607 and pp. 638-642. The underlying notion is one of a failure of performance which in the circumstances is so substantial that justice requires that the consequence of the breach shall be the innocent party’s right to repudiate. See Waddams, above, s. 590, 591. Fridman summarizes the test at p. 607:
The basic test comes down to the simple, if not obvious one of deciding what is the real purpose of the contract, the true benefit intended to be obtained by the injured party, the extent to which the misperformance by the defendant goes beyond falling short of what was desired by the victim of the breach and involves the complete denial to him of any benefit from the performance that was provided.
In Decro-Wall International S.A. v. Practitioners in Marketing Ltd. [1971] 2 All E.R. 216, Buckley, L.J. at p. 232 said:
…not every breach, even if its continuance is threatened throughout the contract or the reminder of its subsistence, will amount to a repudiation. To constitute repudiation, the threatened breach must be such as to deprive the injured party of a substantial part of the benefit to which he is entitled under the contract.
[93] I also find the following quote to be relevant (see G.H.L. Fridman, The Law of Contract in Canada, 4th ed. (Toronto: Canada Law Book, 1999) at p. 607 quoted in Reichmann v. Vered):
“The basic test comes down to the simple, if not obvious one of deciding what is the real purpose of the contract, the true benefit intended to be obtained by the injured party, the extent to which his misperformance….goes beyond falling short of what was desired by the victim of the breach and involves the complete denial to him of any benefit from the performance that was provided.”
[94] Therefore, based on the above authorities, I conclude that, even if there was a breach of a confidentiality provision by Mr. Riddell, C.P.C. was not relieved of its obligations under the agreement. Accordingly, it had no legal right to repudiate the agreement.
Decision:
[95] As a result of the foregoing, I draw the following conclusions and make the following declarations and orders:
(A) I declare that Alan M. Riddell and the Conservative Party of Canada entered into a binding agreement on November 25, 2005, and that the terms of the said agreement include the provisions set out in paragraphs a (i), (ii), (iii), (iv), and (v) of para. [1] of these Reasons for Decision. I further declare that Mr. Riddell has not breached a fundamental term of this agreement.
(B) I cannot, at this time, make an informed decision with regard to whether confidentiality was a term of the agreement. However, I need not determine this issue at this particular time in order to determine whether the applicant is entitled to the relief he seeks in his Application. Even if such a provision existed as part of the entire agreement between the parties, and even if there was a breach of such a provision by Mr. Riddell, any such breach would not and does not, give rise to a right of repudiation of the agreement by C.P.C. I find further that, in any event, the C.P.C. did not, prior to the commencement of this Application, attempt to repudiate the agreement.
(C) If any issue is raised by either party regarding the meaning of the question or questions to be arbitrated (see para. [1] (a) (ii) of these Reasons) or regarding the jurisdiction of the arbitrator, the arbitrator may determine that issue or these issues.
(D) Mr. Kenneth L.W. Boland, Mr. K. Scott McLean, or Mr. Rob Nelson, as the case may be, is appointed as sole arbitrator of the issues to be arbitrated pursuant to the aforesaid agreement which agreement in part, is an arbitration agreement (see paragraph 70 of these Reasons including my reservation of jurisdiction). The matter to be arbitrated is spelled out in paragraph [65] of these Reasons.
(E) In the event that one or both parties wishes/wish a Court determination of the issue of whether the agreement between them included a confidentiality provision, he, it, or they may proceed to the trial of such an issue before another Judge of this Court. If there is a request for a trial of this issue, the C.P.C. shall be designated the plaintiff at the trial and Mr. Riddell shall be designated the defendant. The materials before this Court filed in the Application at this time shall constitute the Record provided that both parties to the issue shall be permitted to demand affidavits of documents from the other and shall be permitted to conduct further cross-examinations of each other in order to explore any issues not already dealt with in full in the already completed cross-examinations.
(F) The relief referred to in paragraph [1] (c) and (d) of these Reasons is refused.
(G) The relief claimed in the respondent’s revised Notice of Motion is dismissed. In particular, I refuse the requests for a stay of the Application and for an order consolidating all or part of the three proceedings. This order is made without prejudice to the right of either party to later, at an appropriate time, launch a motion to consolidate the Plett and Harper actions.
Costs:
[96] In the event that within 30 days following the release of this decision, the parties have failed to conclude an agreement on costs, they may make brief written submissions to me. Each party shall have an additional 10 days within which to deliver a reply to the other’s initial submissions.
______________________
Power J.
Released: January 11, 2007
