COURT FILE NO.: 525/01

DATE: 20030919

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MCRAE, THEN AND FERRIER JJ.

B E T W E E N:

ILSA KAMEN Plaintiff (Respondent)

• and -

STANLEY M. ROSE and FARANO GREEN Defendants (Appellant)

Peter C. Straszynski, for the Respondent

Michael Farace, for the Appellant

HEARD: September 19, 2003

ferrier J.: (Orally)

1The respondent worked as a legal assistant for the appellant Stanley Rose for 17 years. During this period, Mr. Rose practised with several different law firms. In August, 1996, Mr. Rose left his then firm and joined Farano Green. Two years later in October, 1998, Ms. Kamen’s employment was terminated effective March 31^st, 1999.

2There are three issues before us. First, it is submitted that the learned trial judge should have drawn an adverse inference from the fact that the respondent refused to waive solicitor and client privilege concerning a meeting she had with a lawyer. She had this meeting before joining Farano Green and it is argued that the fact of this meeting confirms the evidence of Mr. Rose concerning his testimony that he told Ms. Kamen that he could not protect her seniority rights when she joined Farano Green. However, Ms. Kamen testified that Mr. Rose did not advise her of that and that he told her that she “wasn’t going back to zero, that my years with him would go through for all purposes” and she took his word for it.

3Although the learned trial judge did not make a specific finding on credibility in reference to this evidence, it is implicit in her reasons that she was not persuaded by the evidence of Mr. Rose on the point.

4We are satisfied that solicitor and client privilege could properly be raised in this situation and that in view of the evidence of Ms. Kamen, which the learned trial judge implicitly accepted, it was not an error to fail to draw such an adverse inference.

5The second issue relates to mitigation and the reference in paragraph 35 of the reasons of the learned trial judge to Mr. Rose and Mr. Cunningham not being experts and having an interest in the outcome. The learned trial judge was quite obviously aware that Ms. Kamen also had an interest in the case and she found in careful reasons that the respondent had made reasonable efforts to mitigate.

6The third issue relates to disbursements allegedly owing to Mr. Rose which allegedly had been assigned by Farano Green to Mr. Rose. There was no notice of assignment given to Ms. Kamen and this claim accordingly fails as well. Accordingly, the appeal is dismissed.

7We have endorsed the record as follows: “This appeal is dismissed, oral reasons delivered by Ferrier J. Costs to the respondent fixed at $6,500.00 inclusive of all disbursements and GST”.

MCRAE J.

THEN J.

FERRIER J.

Date of Reasons for Judgment: September 19, 2003

Date of Release: September 26, 2003

COURT FILE NO.: 525/01

DATE: 20030919

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT