Glegg v. Glass et al.
[Indexed as Glegg v. Glass]
Ontario Reports
Court of Appeal for Ontario
Pepall, van Rensburg and Brown JJ.A.
December 22, 2020
155 O.R. (3d) 41 | 2020 ONCA 833
Case Summary
Civil procedure — Discovery — Documents — Privilege — Litigation privilege — Solicitor-client privilege — Appellant suing his ex-wife in Florida for damages for interference with custodial rights — Appellant [page42] obtaining letters of request from Florida court seeking assistance of Ontario courts to secure production of documents — Appellant's application to enforce letters of request dismissed on grounds of public policy — Appeal dismissed — Hearing not procedurally unfair — Letters improperly interfered with solicitor-client privilege and confidentiality — Unnecessary and inappropriate to consider whether it would offend public policy to enforce letters of request in aid of a cause of action not recognized in Ontario.
Conflict of laws — Foreign judgments — Enforcement — Public policy — Appellant suing his ex-wife in Florida for damages for interference with custodial rights — Appellant obtaining letters of request from Florida court seeking assistance of Ontario courts to secure production of documents — Appellant's application to enforce letters of request dismissed on grounds of public policy — Appeal dismissed — Hearing not procedurally unfair — Letters improperly interfered with solicitor-client privilege and confidentiality — Unnecessary and inappropriate to consider whether it would offend public policy to enforce letters of request in aid of a cause of action not recognized in Ontario.
Evidence — Letters of request — Appellant suing his ex-wife in Florida for damages for interference with custodial rights — Appellant obtaining letters of request from Florida court seeking assistance of Ontario courts to secure production of documents — Appellant's application to enforce letters of request dismissed on grounds of public policy — Appeal dismissed — Hearing not procedurally unfair — Letters improperly interfered with solicitor-client privilege and confidentiality — Unnecessary and inappropriate to consider whether it would offend public policy to enforce letters of request in aid of a cause of action not recognized in Ontario.
Evidence — Privilege — Confidentiality — Solicitor and client — Appellant suing his ex-wife in Florida for damages for interference with custodial rights — Appellant obtaining letters of request from Florida court seeking assistance of Ontario courts to secure production of documents — Appellant's application to enforce letters of request dismissed on grounds of public policy — Appeal dismissed — Hearing not procedurally unfair — Letters improperly interfered with solicitor-client privilege and confidentiality — Unnecessary and inappropriate to consider whether it would offend public policy to enforce letters of request in aid of a cause of action not recognized in Ontario.
Family law — Children — Custody — Appellant suing his ex-wife in Florida for damages for interference with custodial rights — Appellant obtaining letters of request from Florida court seeking assistance of Ontario courts to secure production of documents — Appellant's application to enforce letters of request dismissed on grounds of public policy — Appeal dismissed — Hearing not procedurally unfair — Letters improperly interfered with solicitor-client privilege and confidentiality — Unnecessary and inappropriate to consider whether it would offend public policy to enforce letters of request in aid of a cause of action not recognized in Ontario.
Pursuant to a separation agreement, the appellant and his former wife had joint custody of their daughter and each agreed to live within a stipulated distance of Oakville until the daughter turned 18. The wife and her new husband [page43] moved to Florida. The daughter was 15 when she visited them. Upon her arrival the wife's Ontario counsel advised the appellant that the daughter had enrolled in a Florida high school and would not be returning. The appellant commenced litigation against his ex-wife in Florida and Ontario resulting in the child's return. When the child turned 16, she sought and obtained an order from an Ontario court that she had withdrawn from her parents' control. The appellant then commenced a proceeding in Florida against his ex-wife and her husband for damages for intentional interference with custodial rights and intentional infliction of emotional distress. He sought and obtained two letters of request from the Florida court seeking the assistance of Ontario courts to secure production of documents for use in the Florida action. The letters sought production from two former lawyers of the wife, and from lawyers who had acted for the child, including Justice for Children and Youth (JFCY). The appellant brought an application to enforce the letters of request. Prior to the return of the application, the appellant reached a settlement in which he agreed to withdraw the application against one of the wife's lawyers, and the other lawyer would not oppose the application. On the return of the application, the appellant sought an adjournment of the proceeding against JFCY. The judge was prepared only to grant an adjournment for the entire application. The appellant then withdrew his application against JFCY and the application proceeded. The application judge concluded that it would be against public policy to enforce the letters of request because it would offend public policy to enforce letters of request from a foreign court in aid of a cause of action forbidden in Ontario and would interfere with solicitor-client privilege and client confidentiality. The application judge dismissed the application and ordered the appellant to deliver copies of the reasons to the Florida court and to the Ontario Superior Court of Justice, which was scheduled to hear an appeal in criminal proceedings the appellant had attempted to initiate against his ex-wife. The appellant appealed.
Held, the appeal should be dismissed.
The hearing was not procedurally unfair. The application judge's reasons contained a lengthy description of the history of the litigation in Florida and Ontario before the present action. The appellant complained that the description was drawn almost entirely from materials not before the judge at the hearing, including "surplus materials" identified by the appellant as documents filed with the court but which the appellant did not list in his Confirmation of Application. He claimed to have been deprived of a fair opportunity to correct or contradict the facts asserted in those materials. However, the appellant had referred to some of those materials in his main factum on the application, the judge was not limited to considering only those materials that were listed in the confirmation form, no party asked the application judge to disregard specific materials when the adjournment was being argued, and the factual summary was not irrelevant to the application. The judge had the authority to order the appellant to deliver copies of his reasons to the Florida court and the Superior Court even though no party had asked for such relief, and no prejudice resulted from that direction. While the application judge's decision was under reserve the appellant had filed a supplementary factum which clearly revealed that the appellant understood that the application judge was considering whether the fact that Ontario law did not recognize the cause of action asserted in the Florida proceeding might bar enforcement of the letters of request on the grounds of public policy, so the judge had not considered and relied on a legal theory not raised by the parties. [page44]
The application judge did not err in the exercise of his discretion to decline to enforce the letters of request on the ground that they improperly interfered with solicitor-client privilege and confidentiality. There were six categories of documents sought to be produced: retainer agreements, dockets and billing information, payment of legal fees, payment of expert fees, communications between the lawyer and persons other than the client, and tangible evidence provided to the lawyer by persons other than the client. On their face, documents in the first four categories were presumptively protected by solicitor-client privilege. Documents in the remaining two categories fell within the ambit of litigation privilege, which usually ended when the litigation ended, but continued where litigants or related parties remained locked in what was essentially the same legal combat. That was sufficient to dispose of the appeal, and it was neither necessary nor appropriate to consider the other public policy ground. The application judge did not refer to, nor had the parties identified, a case where an Ontario court refused to enforce letters of request on the ground that the foreign cause of action was not one recognized in Ontario.
Cases referred to
Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, [2006] S.C.J. No. 39, 2006 SCC 39, 270 D.L.R. (4th) 257, 352 N.R. 201, J.E. 2006-1723, 47 Admin. L.R. (4th) 84, 51 C.P.R. (4th) 1, 40 C.R. (6th) 1, 150 A.C.W.S. (3d) 401, EYB 2006-109504; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, [1982] S.C.J. No. 43, 141 D.L.R. (3d) 590, 44 N.R. 462, J.E. 82-659, 70 C.C.C. (2d) 385, 28 C.R. (3d) 289, 1 C.R.R. 318, 8 WCB 383, 1982 CCAN para. 10,026; Fecht v. Deloitte v. Touche (1997), 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417, [1997] O.J. No. 511, 97 O.A.C. 241, 15 C.P.C. (4th) 293, 69 A.C.W.S. (3d) 266 (C.A.), affg (1996), 1996 CanLII 11782 (ON SC), 28 O.R. (3d) 188, [1996] O.J. No. 1170, 47 C.P.C. (3d) 165, 62 A.C.W.S. (3d) 263 (Gen. Div.); Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, [1987] S.C.J. No. 49, 42 D.L.R. (4th) 81, 78 N.R. 40, 23 O.A.C. 84, 42 C.C.L.T. 1, [1988] 1 C.N.L.R. 152, [1987] I.L.R. para. 92-753, 9 R.F.L. (3d) 225, 6 A.C.W.S. (3d) 263, 1987 DFQ para. 83, 1987 SOACQ para. 10,009; France (Republic) v. De Havilland Aircraft of Canada Ltd. (1991), 1991 CanLII 7180 (ON CA), 3 O.R. (3d) 705, [1991] O.J. No. 1038, 49 O.A.C. 283, 65 C.C.C. (3d) 449, 1 C.P.C. (3d) 76, 13 W.C.B. (2d) 377 (C.A.); Friction Division Products, Inc. and E. I. Du Pont de Nemours & Co Inc. (No. 2) (Re) (1986), 1986 CanLII 2827 (ON SC), 56 O.R. (2d) 722, [1986] O.J. No. 1029, 32 D.L.R. (4th) 105 (H.C.J.); G. (O.) v. G. (R.), [2017] O.J. No. 5574, 2017 ONSC 6490, 97 R.F.L. (7th) 295 (S.C.J.); G. (R.) v. G. (K.) (2017), 136 O.R. (3d) 689, [2017] O.J. No. 1127, 2017 ONCA 108, 413 D.L.R. (4th) 156, 96 R.F.L. (7th) 119, 275 A.C.W.S. (3d) 808, 276 A.C.W.S. (3d) 150, 2017 CFLG para. 27,312; Gulf Oil Corp. v. Gulf Canada Ltd., 1980 CanLII 192 (SCC), [1980] 2 S.C.R. 39, [1980] S.C.J. No. 41, 111 D.L.R. (3d) 74, 31 N.R. 451, 15 C.P.C. 267, 51 C.P.R. (2d) 1, 2 A.C.W.S. (2d) 180, 1980 CCAN para. 10,018; Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd. (2013), 115 O.R. (3d) 161, [2013] O.J. No. 1906, 2013 ONCA 264, 361 D.L.R. (4th) 711, 34 C.P.C. (7th) 1, 305 O.A.C. 226, 226 A.C.W.S. (3d) 697; Maranda v. Richer, [2003] 3 S.C.R. 193, [2003] S.C.J. No. 69, 2003 SCC 67, 232 D.L.R. (4th) 14, 311 N.R. 357, J.E. 2003-2138, 178 C.C.C. (3d) 321, 15 C.R. (6th) 1, 113 C.R.R. (2d) 76, 59 W.C.B. (2d) 553, REJB 2003-49826, JCPQ 2003-150; Morgan, Lewis & Bockius LLP v. Gauthier (2006), 2006 CanLII 63727 (ON SC), 82 O.R. (3d) 189, [2006] O.J. No. 4936, 40 C.P.C. (6th) 79, 154 A.C.W.S. (3d) 1044 (S.C.J.); Perlmutter v. Smith (2020), 152 O.R. (3d) 185, [2020] O.J. No. 3867, 2020 ONCA 570; Presbyterian Church of Sudan (Re), 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822, 275 D.L.R. (4th) 512, 215 O.A.C. 140, 33 C.P.C. (6th) 27, 151 A.C.W.S. (3d) 571 (C.A.); R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, [1981] S.C.J. No. 89, 127 D.L.R. (3d) 223, 38 N.R. 272, 10 Man. R. (2d) 62, 61 C.C.C. (2d) 465, 23 C.P.C. 259, 6 W.C.B. 415, 1981 CCAN para. 10,016; Treat America Ltd. v. Nestlé Canada, Inc., [2011] O.J. No. 3802, 2011 ONCA 560, 282 O.A.C. 311, [page45] 340 D.L.R. (4th) 707, 205 A.C.W.S. (3d) 652, 9 C.P.C. (7th) 1; Westinghouse Electric Corp. and Duquesne Light Co. (Re) (1977), 1977 CanLII 1315 (ON SC), 16 O.R. (2d) 273, [1977] O.J. No. 2287, 78 D.L.R. (3d) 3, 31 C.P.R. (2d) 164 (H.C.J.); Young v. Tyco International of Canada Ltd. (2008), 92 O.R. (3d) 161, [2008] O.J. No. 4046, 2008 ONCA 709, 65 C.P.C. (6th) 39, 69 C.C.E.L. (3d) 52, 300 D.L.R. (4th) 385, 170 A.C.W.S. (3d) 506
Statutes referred to
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 46 [as am.]
Evidence Act, R.S.O. 1990, c. E.23, s. 60 [as am.]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194,rules 38.09.1(1), (2), 38.10(1)(a)
Authorities referred to
Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018)
APPEAL from the order of Perell J., reported at [2019] O.J. No. 5878, 2019 ONSC 6623, 34 R.F.L. (8th) 394 (S.C.J.) from dismissal of application to enforce letters of request.
James Zibarras, for appellant.
James R.G. Cook and James Beesley, for respondent, Lorne Glass.
Ian McKellar, for respondents, Christina Doris and Christen Seaton Burrison Hudani LLP.
The judgment of the court was delivered by
BROWN J.A.: —
I. Overview
1The appellant, Robert Glegg, an Ontario resident, is suing his ex-wife, Katalin Van Den Hurk, and her husband, Richard Peacey, in Florida for damages for parental alienation from his daughter, Olivia, now an adult. In the Florida proceeding, the appellant obtained letters of request that sought the assistance of the Ontario courts in obtaining the production of documents from the former lawyers for his ex-wife and daughter.1 The application judge dismissed the application on the basis that it would be contrary to public policy to enforce the letters of request. [page46]
2The appellant advances two main grounds of appeal. First, he argues that the application judge conducted the hearing in a procedurally unfair manner. Second, he contends the application judge erred in law by concluding that enforcing the letters of request would offend the public policy of this province.
3I would dismiss the appeal. As I explain below, in my view there was no unfairness in the process the application judge followed. Further, the application judge properly applied the public policy analysis in declining to enforce the letters of request on the basis that they would interfere with solicitor-client privilege and confidentiality. This was a sufficient basis upon which to dismiss the application.
II. Summary of the Material Events
The Ontario custody and child support litigation
4The appellant and Ms. Van Den Hurk married in 1998, separated in 2001, and divorced in 2002. Their daughter, Olivia, was born in 1999. Pursuant to a separation agreement dated April 20, 2001, mother and father had joint custody of Olivia and each agreed to live within a stipulated distance of Oakville until she turned 18.
5In November 2013, Ms. Van Den Hurk and Mr. Peacey moved to Florida. Olivia visited her mother in Florida in August 2014, at which time she was 15 years old. Following Olivia's arrival in Florida, Ms. Van Den Hurk's Ontario counsel wrote the appellant to advise that Olivia did not want to return to Ontario and had enrolled in a Florida high school.
6In September 2014, the appellant commenced litigation against his ex-wife in Ontario and Florida that resulted in Olivia's return to Ontario. Extensive litigation ensued in Ontario regarding custody of and support for Olivia. The details of that litigation have been canvassed at length in the reasons of Gray J. dated October 30, 2017 (G. (O.) v. G. (R.), [2017] O.J. No. 5574, 2017 ONSC 6490, 97 R.F.L. (7th) 295 (S.C.J.)), the reasons of this court dated February 9, 2017 (G. (R.) v. G. (K.) (2017), 136 O.R. (3d) 689, [2017] O.J. No. 1127, 2017 ONCA 108), and the reasons of the application judge, at paras. 26 to 89. There is no need to repeat them. For the purposes of this appeal, the following brief summary of the facts will suffice.
7When Olivia turned 16, she sought and obtained an order from an Ontario court that she had withdrawn from her parents' control. The appellant sought to overturn the withdrawal order. His efforts to do so were ended by this court's February 9, 2017 decision. In its reasons, this court stated, at paras. 40 and 67: [page47]
[The appellant's] continued pursuit of this issue confirms [Olivia's] position that he is obsessed with controlling her and that this has blinded him to the reality that it is he, not her mother, who is the reason that she withdrew from parental control. It also reinforces the strength of the findings in the courts below.
The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge's discretion as she seeks to determine the child's best interests. When, as here, the child is months away from her eighteenth birthday, a continuation of litigation involving her indicates more about the parent's needs than the child's.
8In 2016, Olivia commenced an application for child support against her father, which he resisted. Although Olivia obtained orders for interim child support, on December 13, 2017 she withdrew her application. The Ontario proceedings in respect of her custody and support thereby ended.
The Florida Action and Letters of Request
9In July 2018, the appellant commenced a proceeding in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida (the "Florida Court") against Ms. Van Den Hurk and Mr. Peacey (the "Florida Action"). As described in his Verified Complaint, the appellant seeks to recover from his ex-wife and her husband $9.6 million in "damages, including punitive damages should such award be appropriate, arising from an intentional course of conduct by Defendants to interfere with the custodial rights of Plaintiff and to intentionally cause economic, emotional, and psychological harm to Plaintiff". The appellant's Verified Complaint asserts two counts against his ex-wife and her husband: (i) intentional interference with custodial rights granted by Ontario court orders, including orchestrating the daughter's proceedings for a declaration that she was free from parental control; and (ii) intentional infliction of emotional distress resulting from the alleged interference in the appellant's custodial rights, including the violation of Ontario court orders.
10In May and June 2019, the appellant sought and obtained two letters of request from the Florida Court seeking the assistance of Ontario courts to secure the production of documents for use in the Florida Action (the "Letters of Request"). Specifically, the Letters of Request sought production of documents from two former lawyers for Ms. Van Den Hurk, Linda Sapiano and Christina Doris, as well as from lawyers who had acted for Olivia, Lorne Glass and Justice for Children and Youth ("JFCY"). [page48] The Subpoenas for Production of Documents from Non-Party attached to the Letters of Request describe the documents for which production is sought. Appendix "A" to these reasons reproduces the Subpoena directed to Mr. Glass. The Subpoena states that for some, but not all, categories of documents sought, "attorney-client privileged/work production privileged information may be redacted".
The Ontario enforcement application
11In July 2019, the appellant commenced an application seeking to enforce the Letters of Request against Ms. Sapiano, JFCY, Mr. Glass and Ms. Doris, together with her law firm, Christen Seaton Burrison Hudani LLP.
12The application was withdrawn against Ms. Sapiano.
13Responding materials were filed by the remaining respondents. Cross-examinations were conducted of the appellant, Ms. Doris, and Ms. Mary Birdsell, a lawyer and JFCY's executive director.
14The events surrounding the return of the application are relevant to the appellant's grounds of appeal, so they require some elaboration. Prior to the return of the application, the appellant reached a settlement with Ms. Sapiano and Ms. Doris in which he agreed to withdraw the application against Ms. Sapiano, and in which Ms. Doris agreed not to oppose the application provided the redaction of privileged information applied to all categories of documents. On the return of the application, the application judge was informed that the appellant was withdrawing the application against Ms. Sapiano and Ms. Doris was not opposing the proceeding: at paras. 15, 19 and 22. It does not appear that the application judge was told the terms of the settlement.
15On the return of the application, the appellant also sought an adjournment of the proceeding against JFCY. As explained in his reasons, at para. 20, the application judge refused to adjourn the application against JFCY unless the entire application was adjourned since the appellant's "application could not properly be heard seriatim, because the whole factual record was relevant and had been relied on". For instance, the application judge noted that the appellant, in his application as against Mr. Glass, was "relying on information from the affidavit and cross-examination of Ms. Birdsell" and that "the positions being taken by the parties were intertwined".
16Following a brief recess, the appellant advised that he was withdrawing his application with prejudice against JFCY: at para. 21. [page49]
17The application then proceeded against Mr. Glass, Ms. Doris and her law firm.
18The application judge dismissed the application. He concluded that it would be against public policy to enforce the Letters of Request for two reasons. First, it would offend public policy to enforce letters of request from a foreign court "in aid of a cause of action that is forbidden in Ontario": at para. 122. Second, he concluded that the application should be dismissed because it interfered with solicitor-client privilege and client confidentiality, notions fundamental to the administration of justice and to the Canadian legal system: at para. 134.
19The application judge also directed the appellant to deliver copies of his reasons to the presiding judge in the Florida Court and to this court, which was scheduled to hear an appeal in criminal proceedings the appellant had attempted to initiate against Ms. Van Den Hurk: at para. 143.
III. Issues on Appeal
20The appellant submits that the order of the application judge should be set aside and an order enforcing the Letters of Request should issue. The appellant argues the application judge made two types of errors:
(1) Procedural errors that rendered the hearing process unfair, namely:
(a) reviewing and relying on materials not properly before the court;
(b) ordering relief not sought by the parties; and
(c) relying on legal theories not raised by the parties.
(2) Substantive errors of law regarding the scope of the public policy ground to refuse the enforcement of letters of request, namely in concluding that:
(a) the Letters of Request would interfere with solicitor-
client privilege and client confidentiality; and
(b) It would be contrary to public policy to enforce the Letters of Request in aid of a cause of action that is forbidden in Ontario.
IV. Issue 1: Was the Hearing Procedurally Unfair?
21The appellant advances an overarching submission that the application judge exceeded his role as a judge and assumed [page50] the role of an advocate, to the prejudice of the appellant. The appellant points to three specific instances of such conduct that, he contends, rendered the hearing process unfair.
Issue 1(a): The improper reliance on certain of the application materials
22First, the appellant argues that the application judge acted unfairly by engaging in "independent investigations" and reviewing materials that were not properly before him.
23The application judge's reasons contain a lengthy description of the history of the custody and support litigation that took place in Ontario and Florida prior to the appellant's initiation of the Florida Action. The appellant complains that this description "was almost entirely drawn from materials not before the Application Judge at the hearing, including the Surplus Materials, as well as Florida and Ontario decisions". He argues that the application judge should have invited appellant's counsel to make submissions on those facts.
24In his factum, the appellant coined the term "Surplus Materials" to describe materials that certain parties had filed with the court but which the appellant did not list in his Confirmation of Application, specifically: (a) the affidavit and cross-examination transcript of Ms. Birdsell, the affiant for JFCY; (b) the responding Application Record of Doris; (c) the responding Factum and Book of Authorities of JFCY; and (d) court decisions in Florida and Ontario. Since the application against JFCY was withdrawn at the hearing and Ms. Doris did not oppose the application, the appellant contends that the application judge's use of their materials amounted to an impermissible "independent investigation". According to the appellant, this deprived him of a fair opportunity to correct or contradict the facts asserted in those materials.
25I see no merit in this submission for several reasons.
26First, the appellant's own litigation conduct undermines his submission. In his main factum on the application, the appellant referred to some of the so-called Surplus Materials. Although the appellant criticizes the application judge for referring to the evidence of Ms. Birdsell from JFCY, the appellant referred to her affidavit and cross-examination at paras. 33, 61 and 71 of his main factum. This quite understandably led the application judge to describe the positions being taken by the parties as "intertwined": at para. 20.
27As well, one exhibit to the appellant's affidavit in support of the application was his Verified Complaint in the Florida Action, to which were attached several of the Ontario and Florida [page51] custody orders. The responding materials filed by Ms. Doris and JFCY reproduced some of the other orders made in those proceedings. It was open to the application judge to consider all of the orders to gain an accurate understanding of the events that led to the issuance of the Letters of Request.2
28Second, I do not accept the appellant's submission that the application judge could only refer to materials that the appellant had listed in the Confirmation Form he filed for the return of the application.
29Rule 38.09.1(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires the party who makes an application on notice to give the registrar, at least three days before the hearing date, a confirmation of application using Form 38B. If no confirmation is given, the application will not be heard except by order of the court: rule 38.09.1(2). Regional practice may modify the content of confirmation form. The modified Form 38B used in the Toronto Region requires counsel to identify the materials that have been filed and will be relied upon for the hearing of the application. As the form states, it "must be attached to the materials being filed and all materials to be relied on at hearing must be filed in one complete package within the required timelines".3
30As is apparent from the language on the Toronto Region's modified confirmation form, the document operates as a device that assists court staff in the Civil Scheduling Unit to identify the materials that should be delivered to the judge hearing an application or motion. The form does not act as some sort of administrative constraint on a judge's discretion to determine the materials that are in fact relevant to the decision he has to make.
31Third, when the application judge refused to adjourn the application as against JFCY, he "advised the parties that Mr. Glegg's application could not properly be heard seriatim, because the whole factual record was relevant and had been relied on": at para. 20. Yet, in oral argument, appellant's counsel did not [page52] dispute the proposition that on the return of the application no party asked the application judge to disregard specific materials.
32Fourth, in response to a question from the bench, appellant's counsel clarified that his client was not taking the position that the application judge's summary of the facts was based on inadmissible evidence. Instead, the appellant submitted that much of that summary was irrelevant to the application to enforce the Letters of Request, where the focus should be on the Florida Action.
33I disagree. First, as noted at para. 27, the appellant's Verified Complaint filed in support of the application to enforce the Letters of Request described and attached several of the orders made in the Ontario custody proceedings. Second, in considering whether to enforce letters of request, a judge must determine "whether the request imposes any limitation or infringement on Canadian sovereignty and whether justice requires an order for the taking of commission evidence": Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd. (2013), 115 O.R. (3d) 161, [2013] O.J. No. 1906, 2013 ONCA 264, at para. 59. To make that determination, a judge must understand the circumstances that led to the issuance of the letters of request. That is especially so in the unusual circumstances presented by this case, where extensive litigation in Ontario preceded the initiation of the foreign proceeding in which the Letters of Request were issued.
34Accordingly, I am not persuaded that the application judge improperly relied on some of the application materials filed with the court.
Issue 1(b): Ordering relief not sought by the parties
35The application judge ordered the appellant to deliver copies of his reasons to the presiding judge in the Florida Court and to this court in advance of the hearing of his appeal of the stay of his private prosecution of criminal charges against his ex-wife: at para. 144. The appellant submits that since no party had asked for such relief, the application judge did not have the authority to make those directions. He contends that the application judge's directions "had a deleterious effect on the integrity and fairness of those other proceedings".
36I do not accept this submission. The application judge had the authority to make the direction he did. Rule 38.10(1) (a) provides that a judge hearing an application may "grant the relief sought or dismiss or adjourn the application, in whole or in part and with or without terms". It was open to the application judge [page53] to direct the delivery of his reasons to other courts as a term of his dismissal of the application.
37Moreover, no prejudice could result from the application judge's direction. The Florida Court was entitled to be told, as a matter of comity, the reasons why the Ontario court declined to enforce its Letters of Request. Further, when this court hears the appellant's appeal regarding the stay of his private prosecution against his ex-wife, no doubt the appellant can make submissions about the relevance or irrelevance and accuracy or inaccuracy of the facts set out in the application judge's reasons. This court will decide his appeal on the proper record.
Issue 1(c): Relying on legal theories not raised by parties
38The final procedural error asserted by the appellant is that the application judge considered and relied on a legal theory not raised by counsel and without giving appellant's counsel an opportunity to make responsive submissions.
39In his reasons, the application judge concluded that it would be contrary to public policy to enforce the Letters of Request from the Florida Court in aid of a cause of action that was forbidden in Ontario. Citing the case of Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, [1987] S.C.J. No. 49, the application judge held that in Ontario a parent could not sue his spouse or third parties for interfering with the parent's relationship with his children and denying him the opportunity to give the children parental love, care and guidance: at paras. 122 and 123.
40The appellant submits that the issue of whether the Florida Action offended public policy was not raised at the hearing by the parties or the application judge, nor did the application judge ask the parties for submissions on Frame v. Smith. As a result, the application was decided without submissions from the appellant on Frame v. Smith, thereby denying him a fair opportunity to respond, resulting in prejudice to the appellant.
41I do not accept the appellant's submission. The record discloses that the application judge followed a fair process.
42The appeal record does not contain a transcript of the hearing before the application judge. However, at the conclusion of the hearing on October 28, 2019, the application judge reserved his decision and wrote, in a brief endorsement [at para. 24]:
[The appellant] is at liberty to file any additional authorities and written argument on the issue of whether, apart from the issue of solicitor-client privilege, there are other public policy issues relevant to the enforcement of letters rogatory, that are relevant to the request being made in the immediate case. [page54]
43Pursuant to that endorsement, the appellant filed a supplementary factum dated November 4, 2019. The second part of that factum bore the heading: "The underlying substantive claims in the Florida Action do not have to be recognized claims in Ontario". Under that heading, the appellant submitted that in determining whether to enforce letters of request, the inquiry is limited to whether the production of the evidence or documents sought would be contrary to public policy, not to a consideration of the substantive claims underlying the foreign litigation. The appellant argued that the substantive claims underlying the Florida Action did not form a "proper legal or other basis for refusing to grant the requested [Letters of Request]".
44While the appellant's supplementary factum did not refer to the decision in Frame v. Smith, the second part of that document clearly reveals the appellant understood that the application judge was considering whether the fact that Ontario law did not recognize the cause of action asserted in the Florida Action might bar enforcement of the Letters of Request on the grounds of public policy. Consequently, I see no unfairness in the process followed by the application judge.
Conclusion on Issue 1
45For these reasons, I am not persuaded that the appellant was denied procedural fairness in the hearing before the application judge.
V. Issue 2: Did the Application Judge Err in his Public Policy Analysis?
The public policy issue stated
46The application judge dismissed the appellant's application to enforce the Letters of Request on the basis that they contravened public policy in two respects:
(a) the Letters of Request interfere with solicitor-client privilege and client confidentiality, notions fundamental to the administration of justice and to the Canadian legal system: at para. 134, and
(b) it would be contrary to public policy to enforce the Letters of Request in aid of a cause of action that is forbidden in Ontario: at para. 122.
47The appellant appeals both conclusions. [page55]
The applicable legal principles
48Before considering the parties' submissions, a brief summary is in order of the principles regarding the scope of the public policy factor used in the analysis to determine whether to enforce letters of request.
49Foreign letters of request are to be given full force and effect by domestic courts unless they are contrary to public policy or otherwise prejudicial to the sovereignty or the citizens of the jurisdiction to which the request is directed: Gulf Oil Corp. v. Gulf Canada Ltd., 1980 CanLII 192 (SCC), [1980] 2 S.C.R. 39, [1980] S.C.J. No. 41; R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, [1981] S.C.J. No. 89, at p. 401 S.C.R.; Presbyterian Church of Sudan (Re), 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822, 275 D.L.R. (4th) 512 (C.A.), at para. 17. In considering a request to enforce, a court must balance the possible infringement of Canadian sovereignty with whether justice requires an order for the taking of commission evidence, in view of the "natural desire" to assist foreign courts: Zingre, at p. 403 S.C.R. As put in Lantheus, at para. 59, quoting France (Republic) v. De Havilland Aircraft of Canada Ltd. (1991), 1991 CanLII 7180 (ON CA), 3 O.R. (3d) 705, [1991] O.J. No. 1038 (C.A.), at para. 36, the test requires that the court:
. . . [C]onsider whether the request imposes any limitation or infringement on Canadian sovereignty, and whether justice requires an order for the taking of commission evidence. The considerations encompassed by the phrase "Canadian sovereignty" . . . include an assessment of whether the request would give extra-territorial authority to foreign laws which violate relevant Canadian or provincial laws . . .; whether granting the request would infringe on recognized Canadian moral or legal principles . . .; and whether the request would impose an undue burden on, or do prejudice to, the individual whose evidence is requested.
50In conducting this balancing exercise, a court considers whether the evidence, including the letters of request, establishes the six non-exhaustive factors set out in Friction Division Products, Inc. and E.I. Du Pont de Nemours & Co. Inc. (No. 2) (Re) (1986), 1986 CanLII 2827 (ON SC), 56 O.R. (2d) 722, [1986] O.J. No. 1029 (H.C.J.), at p. 732 O.R., and Fecht v. Deloitte & Touche (1996), 1996 CanLII 11782 (ON SC), 28 O.R. (3d) 188, [1996] O.J. No. 1170 (Gen. Div.), at p. 194 O.R., affd (1997), 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417, [1997] O.J. No. 511 (C.A.).4 These factors operate [page56] as "useful guideposts", not rigid pre-conditions, to the exercise of a judge's discretion: Lantheus, at paras. 61 and 69; Perlmutter v. Smith (2020), 152 O.R. (3d) 185, [2020] O.J. No. 3867, 2020 ONCA 570, at para. 25.
51One of the factors is whether enforcing the letters of request would be contrary to public policy: Treat America Ltd. v. Nestlé Canada, Inc., [2011] O.J. No. 3802, 2011 ONCA 560, 340 D.L.R. (4th) 707, at para. 12. In considering this factor, the court focuses on whether it would be contrary to the public interest to require the production of the evidence or documents sought. In Westinghouse Electric Corp. and Duquesne Light Co. (Re) (1977), 1977 CanLII 1315 (ON SC), 16 O.R. (2d) 273, [1977] O.J. No. 2287 (H.C.J.), the letters of request sought the production of documents that were subject to federal regulations prohibiting their disclosure. The court declined to enforce the letter of request. One factor militating against enforcement was the Government of Canada's policy that the information and documents sought should not be disclosed. The court concluded that, in exercising its discretionary power to enforce letters of request, it should take judicial cognizance of the stated public policy and not force the disclosure of information if to do so would, on the authority of the government, be harmful to the public interest: p. 290 O.R. The decision in Westinghouse Electric was cited with approval by the Supreme Court of Canada in Gulf Oil, at pp. 56-58 S.C.R.5
Issue 2(a): The solicitor-client privilege public policy ground
52The application judge stated that the Letters of Request offended public policy because they sought documents to which solicitor-client privilege applied or presumptively applied. He held that, to the extent some of the documents fell "in the territory of administrative information relating to the solicitor-client relationship", the appellant had not rebutted the presumption of privilege by evidence showing that there is no reasonable [page57] possibility that disclosure of the requested information would lead to the revelation of confidential information, or that the requested information was not linked to the merits of the case: at para. 142. The application judge also concluded that, in the circumstances, a privilege log approach would not be appropriate as it would require the lawyers to breach their professional duty of confidence and violate solicitor-client privilege: at paras. 140-141.
53In his notice of appeal, the appellant alleges several errors committed by the application judge in respect of those findings. The main points are that the application judge erred by: finding the lawyers' communications with third parties were privileged or confidential; misapplying solicitor-client privilege to third party communications that are not protected by the privilege; finding that a privilege log would breach solicitor-client privilege and offend public policy; and holding that the appellant was required to show there is no reasonable possibility that the disclosure of the requested information would lead to the revelation of solicitor-client communications.
54Although the appellant did not address the issue in his factum, at the hearing appellant's counsel submitted that: the application judge's reasons on the issue of solicitor-client privilege were obiter; the appellant has never asked for privileged documents; the appellant had offered to pay the respondents for the time they spent complying with the Letters of Request, including any privilege review; and an Ontario court would adjudicate any disputes regarding privilege claims.
55I am not persuaded by the appellant's submissions.
56The decision to grant or refuse a foreign request is a matter of judicial discretion to which this court must give deference in the absence of a demonstrated error in principle by the court below, which would include a misapprehension of or failure to take into account the evidence, or a clearly wrong or unreasonable result: Presbyterian Church, at paras. 19 and 30; Perlmutter, at para. 26; Young v. Tyco International of Canada Ltd. (2008), 92 O.R. (3d) 161, [2008] O.J. No. 4046, 2008 ONCA 709, at para. 27. I see no such error.
57First, the application judge's conclusion on solicitor-client privilege was not obiter. His reasons are clear that it was a discrete basis on which he dismissed the application as contrary to public policy: at paras. 134 and 143.
58Second, the application judge rejected the appellant's contention that he was not seeking documents protected by solicitor-client privilege as "sophistry". I think that finding was apt: at para. 139. [page58]
59As can be seen from the Subpoena attached to the Letters of Request, a copy of which can be found at Appendix "A", the Letters of Request commanded the former lawyers for Ms. Van Den Hurk and Olivia to produce six categories of documents:
(a) Four of the categories describe documents that Ontario law classifies as subject to solicitor-client privilege or presumptively so privileged:
-- Category 1: retainer agreements;
-- Category 2: dockets and billing information;
-- Category 3: information regarding the payment of legal fees; and
-- Category 4: information regarding the payment of expert fees.
(b) The other two categories describe documents that might be subject to solicitor-client privilege or litigation privilege, depending upon the specific circumstances:
-- Category 5: the names, dates, email addresses, phone numbers and call logs of communications the lawyer had with persons other than the client in which the lawyer communicated in conjunction with the representation of the client; and
-- Category 6: documents, photographs or tangible evidence provided to the lawyer by a person other than the client in conjunction with the lawyer's representation of the client.
60The Letters of Request stipulate that the documents sought under Categories 2, 4, 5 and 6 may be redacted for "attorney-client privileged/work product privileged information". As well, the Letters of Request would require the targeted lawyer to provide a list, or privilege log, of documents withheld as privileged, although the log would have to provide "a general description of the subject matter to which the document relates".
61No evidence was placed before the application judge that either of the two clients -- Ms. Van Den Hurk or Olivia -- had consented to the release of the documents or information sought.
62On their face, the documents sought in Categories 1 through 4 of the subpoenas attached to the Letters are protected, or presumptively protected, by solicitor-client privilege: Descôteaux v. Mierzwinksi, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, [1982] S.C.J. No. 43, at pp. 892-93 S.C.R.; Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193, [2003] S.C.J. No. 69, [page59] 2003 SCC 67, at paras. 30-33; Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at §14.76-14.88.
63Those in Categories 5 and 6 patently fall within the ambit of the principle of litigation privilege, as the subpoenas seek documents or information communicated to the target lawyers in conjunction with their consultations with or representations of Ms. Van Den Hurk or Olivia.
64While litigation privilege usually ends when the litigation ends, it continues where litigants or related parties remain locked in what is essentially the same legal combat: Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, [2006] S.C.J. No. 39, 2006 SCC 39, at para. 34. Related litigation includes separate proceedings that involve the same or related parties and arise from the same or a related cause of action, or proceedings that raise issues common to the initial action and share its essential purpose: Blank,at para. 39. The application judge wrote that Olivia's withdrawal of her application for child support "did not bring a ceasefire to the family battles". Instead, it appeared that the appellant sought to continue the hostilities by commencing his Florida Action: at para. 90. The history of the parties' custody litigation provided support for that observation. As well, the history and character of the litigation strongly suggest that, for the purposes of determining whether litigation privilege continues to apply to the Categories 5 and 6 documents, the Florida Action would constitute litigation related to the terminated Ontario proceedings.
65Accordingly, the Letters of Request seek facially privileged information and documents in the possession of the former lawyers for Olivia and Ms. Van Den Hurk related to the work the lawyers performed for those clients in respect of Ontario litigation, and in respect of which the clients have not waived privilege. In my view, those circumstances will inevitably give rise to disputes over any privilege claimed by the targeted lawyers on behalf of their former clients. Appellant's counsel submits that those disputes can be determined by way of a motion before an Ontario court. With respect, I see no reason why Ontario courts should devote any more resources to the appellant's custody-related litigation that this court ended in 2017.
66I would make one further observation, although it is not strictly tied to the privilege issue. It is clear that in the Florida Action the appellant seeks to put in issue the validity of decisions of the Ontario courts, including this court, and he seeks to use the Letters of Request to obtain evidence to support his position: Verified Complaint, para. 32. In his discussion of the public policy [page60] factor, the application judge wrote that "it would not be appropriate for a foreign court to support this collateral attack on the decisions of the domestic court and it would be inappropriate for the foreign court to rule on the probity of proceedings in Ontario": at para. 129.
67I agree. For the Letters of Request to seek evidence that the appellant plainly intends to use to attack orders made by Ontario courts amounts to a potential infringement of Canadian sovereignty.
Conclusion on Issue 2(a)
68For those reasons, I see no reversible error in the application judge's exercise of his discretion to decline to enforce the Letters of Request on the ground of public policy because they would improperly interfere with solicitor-client privilege and confidentiality.
69That is sufficient to dismiss the appeal. As I briefly explain below, I conclude that it is neither necessary nor appropriate to consider the other public policy ground dealt with by the application judge.
Issue 2(b): The other public policy ground
70The application judge also dismissed the application on the basis that it would be contrary to public policy to enforce the Letters of Request in aid of a cause of action forbidden in Ontario. As the application judge pointed out, in Frame v. Smith, the Supreme Court of Canada refused to recognize a cause of action by a parent against a former spouse and others for interference with access to their children. The application judge determined that the appellant was using Florida law to advance a claim that Ontario law does not recognize. Drawing on case law concerning the recognition and enforcement of foreign judgments, the application judge concluded that the Letters of Request were based on a foreign law that "is simply too offensive to local notions of what is just and reasonable", so they should not be enforced: at para. 132.
71The appellant submits that in so finding the application judge misapplied the public policy factor applicable to letters of request, which focuses on whether the disclosure of the information sought would offend public policy, not on the underlying foreign litigation.
72The appellant correctly states the governing jurisprudence. In Presbyterian Church, at para. 23, this court cited the decisions in Zingre and Westinghouse Electric for the principle that the [page61] public policy analysis must focus on the request, not on the underlying foreign litigation.
73However, in the circumstance of this case, it is not necessary to consider the issue of whether an Ontario court can refuse to enforce letters of request on the ground that the foreign cause of action is not one recognized in Ontario. It is not necessary since I have found, at para. 68 above, that the application judge did not err in declining to enforce the Letters of Request on the other public policy ground -- namely, because they would improperly interfere with solicitor-client privilege and confidentiality. That is a sufficient basis on which to dispose of the appeal.
74It would be inappropriate to consider the issue as it has not been properly briefed. The application judge did not refer to, nor have the parties drawn our attention to, a case where an Ontario court refused to enforce letters of request on the ground that the foreign cause of action was not one recognized in Ontario. No legal text or journal commentary on the issue was filed on the appeal. Given that state of the record, consideration of the issue should await a case where it is determinative and has been properly briefed.
VI. Disposition
75For the reasons set out above, I would dismiss the appeal.
76By e-mail dated October 30, 2020, the parties informed the court that they had reached an agreement on costs.
Appeal dismissed.
APPENDIX "A"
SUBPOENA FOR-PRODUCTION OF DOCUMENTS FROM NON-PARTY THE STATE OF FLORIDA
TO: Records Custodian
Lorne Glass
Glass and Associates
YOU ARE HEREBY COMMANDED to appear at the Law Office of Gary Joseph, MacDonald & Partners, 155 University Ave. Suite 1700, Toronto, ON M5H 3B7, on or before 10 days from the [page62] date of service of this Subpoena, and to have with you at that time and place the following documents relating to OLIVIA GLEGG:
All retainer agreements, engagement letters, contracts, or records of employment between Lorne Glass and/or Lorne Glass and Associates ("Firm") showing the terms and conditions of your office's consultation and/or representation of OLIVIA GLEGG or any person acting on her behalf for all matters in which the Firm was retained to provide services to or on behalf of OLIVIA GLEGG, with respect to all legal matters including consulting services and any initial consultation, from the date of the initial contact through August 31, 2017.
With respect to the matter(s) referenced in paragraph numbered one (1) above, any and all records reflecting time entries, including but not limited to daily time records, of any and all attorneys, paralegals and assistants working on this matter, together with any and all billing memoranda and bills rendered by the Firm on this matter, from the date of the initial contact through August 31, 2017. *** Attorney-Client Privileged/Work Product Privileged Information May Be Redacted ***
All records, including but not limited to payment records, receipts, credit card authorizations, cancelled checks, etc., evidencing payments or distributions made by or on behalf of OLIVIA GLEGG toward attorney fees (including any consultations), costs or retainers from the date of the initial contact through August 31, 2017.
All records, including but not limited to payment records, receipts, credit card authorizations, cancelled checks, etc., evidencing payments or distributions made by or on behalf of OLIVIA GLEGG toward professional and/or expert fees and costs rendered by third parties from the date of the initial contact through August 31, 2017. *** Attorney-Client Privileged/Work Product Privileged Information May Be Redacted ***
All records including names, dates, email addresses, phone numbers and call logs of communications with persons other than OLIVIA GLEGG in which you communicated in conjunction with your consultation and/or representation of OLIVIA GLEGG. ***Attorney-Client Privileged/Work Product Privileged Information May Be Redacted ***
All photographs, documents or tangible evidence provided to you by any person other than OLIVIA GLEGG in conjunction with your conjunction with your consultation and/or representation of OLIVIA GLEGG. *** Attorney-Client Privileged/Work Product Privileged Information May Be Redacted *** [page63]
In the event any document is withheld as privileged (attorney-client or work product), please provide a list ("privilege log") of the documents withheld in compliance with Fla. R. Civ. P. 1.280(b)(5) for subsequent judicial review and state the following information with respect to each document withheld:
a. The date appearing on the document and, if it has no date, the date or the approximate date on which it was prepared;
b. The title, label, code number, or file number of the documents;
c. The name and current address of the person who signed the document or, if it is not signed, the name and current address of the person who prepared the document;
d. The name and current address of the person to whom the document was directed and the person or persons to whom any copies of the document were directed;
e. A general description of the subject matter to which the document relates;
f. The name and current address of the person having present possession, custody, or control of the document; and
g. The grounds on which the document is being withheld.
These items will be inspected and may be copied at that time. You will not be required to surrender the original items. You may comply with this subpoena by providing legible copies of the items to be produced to the attorney whose name appears below, on or before the scheduled date of production. You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation. You may mail or deliver the copies to the attorney whose name appears on this subpoena and thereby eliminate your appearance at the time and place specified above. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whose name appears on this subpoena. This will not be a deposition; no testimony will be taken.
If you fail to (a) appear as specified; or (b) furnish the records instead of appearing as provided above; or (c) object to this subpoena, you may be in contempt of court. You are subpoenaed to appear by the attorney whose name appears below, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.
Footnotes
- Section 60 of the Evidence Act, R.S.O. 1990, c. E.23 grants Ontario courts the discretion to enforce letters of request issued by a foreign court. The Canada Evidence Act, R.S.C. 1985, c. C-5 contains a similar provision, at s. 46.
- Schedule "C" to the Factum of Lorne Glass, dated May 27, 2020, cogently demonstrates that most of the findings of fact made by the application judge were based on materials filed by the appellant.
- Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region, s. 13; Ontario Superior Court of Justice (Toronto Region) Civil Scheduling Unit Confirmation Form, January 2020.
- The six factors are: (1) the evidence sought is relevant; (2) the evidence sought is necessary for trial and will be adduced at trial, if admissible; (3) the evidence is not otherwise obtainable; (4) the order sought is not contrary to public policy; (5) the documents sought are identified with reasonable specificity; and (6) the order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried here.
- Another example of a court relying upon Canadian "blocking legislation" or government policy is the decision of the Superior Court of Justice in Morgan, Lewis & Bockius LLP v. Gauthier (2006), 2006 CanLII 63727 (ON SC), 82 O.R. (3d) 189, [2006] O.J. No. 4936 (S.C.J.). There, the court refused to give full effect to a letter of request from a Pennsylvania court in part for reasons of public policy because the production sought related to breaches by a Canadian company of American legislation prohibiting trade with Cuba. The court noted that Canadian public policy opposed the extra-territorial application of the American embargo legislation and a Canadian government order prohibited Canadians from complying with the United States law: at para. 74. In the result, the parties agreed upon a reduced scope of documentary production that satisfied the court's concerns: at para. 87.
