ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
OSIRIS INC.
Plaintiff (Appellant)
- and –
1444707 ONTARIO LTD., MARY GENOVESE, 1422223 ONTARIO INC., RICHARD ROBBS, 1409133 ONTARIO INC., OLIVER GORDON, 1403161 ONTARIO INC., VIKEN KAHWAJIAN (a.k.a. VIK KAHWAJIAN), 1394135 ONTARIO LTD., 1483710 ONTARIO LTD., RONALD ANGLIN, BARB ANGLIN, 1498368 ONTARIO INC., LIZ LECLAIR, JASKHS ENTERPRISES INC., JOHN SZYMKOWIAK, 1376760 ONTARIO INC., KRIKOR KAHWAJIAN (a.k.a. KOKO KAHWAJIAN), 1363777 ONTARIO LTD., TOM RUSH, KRISTINE WATKINSON, 1375023 ONTARIO INC. and OLIVER GORDON
Defendants (Respondents)
Benjamin Zarnett and Richard Campbell, for the Plaintiff (Appellant)
K. Scott McLean and Ian Houle, for the Defendants (Respondents)
Brian D. Belmont, for Urus Industrial Corporation and Indus Corporation
HEARD: February 10, 2006
JENNINGS J.: (Orally)
1This is a motion for leave to appeal from the Order of Cullity J. delivered December 21, 2005, in which he declined to disqualify the defendants’ solicitors from continuing to represent the defendants in this matter.
2The Notice of Appeal is from other aspects of Cullity J.’s order but on the hearing before me only the disqualification issue was argued.
3The facts can be briefly stated as follows: Nasir hacked into the computers of the plaintiff and obtained a number of documents. On July 15, 2003, he gave them to the defendants’ solicitor, (VDG) knowing that they were involved in litigation with the plaintiff. The defendants’ solicitors ultimately produced the documents in the litigation.
4The plaintiff submits that the obligation on the solicitors to immediately disclose and seek directions from the Court referred to in National Bank Ltd. v. Potter, 2005 NSSC 113, [2005] N.S.J. No. 186 and Autosurvey v. Prevost, [2005] O.J. No. 4291, were not applied by the motions judge to the facts of this case and accordingly, the cases were in conflict with his decision.
5There are two problems with that submission, both of which were referred to in the thirty pages of reasons for decision delivered by the motions judge. Firstly, the documents were disclosed by the solicitors to the plaintiff the day after they were received during a cross examination. Secondly, the motions judge found that it was not until January, 2004, that the solicitors became aware that the documents had been obtained in breach of their owner’s rights to privacy and confidentiality. The motions judge also found that the plaintiffs refused to admit ownership of the documents until many months after they became aware that the solicitors had them in their possession.
6The motions judge clearly considered both Autosurvey and Potter, along with numerous other cases on disqualification. He was of the opinion that when the solicitors discovered that the documents were the property of the plaintiffs and that they had been obtained in breach of the plaintiffs rights to privacy and confidentiality, they ought to have followed what he described as the prudent course of action and sought the Court’s direction.
7At paragraph 62 of his reasons, the trial judge recorded the concession of plaintiff’s counsel that:
“In the ultimate analysis, there is a balancing exercise to be performed in which the degree of denunciation required for the solicitors’ conduct must be measured against the rights of litigants to the counsel of their choice, and the detriment they will suffer if such counsel are disqualified.”
8In paragraph 75 of his reasons, the motions judge fully and clearly set out his reasons for finding that the solicitor’s failure to seek the Court’s direction in January, 2004, was not sufficient reason to warrant their removal when balanced against the enormous detriment that would be caused to the defendants.
9In paragraph 76 of his reasons, the motions judge said:
“Perhaps, more fundamentally, this case is contextually distinguishable from those on which Mr. Zarnett relied in that the motion must, I believe, be viewed as the culmination of an (sic) tactical struggle over the advantage to be obtained by each side from VDG’s possession of the Documents.”
10The motions judge was uniquely positioned to make that observation in that he had been actively case-managing this action through, in his words, “the numerous motions that had been filed”.
11The motions judge disapproved of the solicitor’s conduct and properly applied the balancing test required of him by MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235.
12In my opinion, the motions judge was correct in his analysis and in the application of the law to the facts that he found.
13Further, I find no cases in conflict. The procedure that the appellant submits is established in Autosurvey and Potter was found by the motions judge to be inapplicable until January, 2004, and on the facts of this case he found non-compliance at that time did not warrant disqualification. That does not put his decision in conflict with those cases.
14For these reasons, leave to appeal is denied.
15If counsel are unable to agree on costs, they may make brief submissions in writing within two weeks of the release of these reasons.
JENNINGS J.
Date of Reasons for Judgment: February 10, 2006
Date of Release: February 21, 2006
COURT FILE NO.: 04/06
DATE: 20060210
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
OSIRIS INC.
Plaintiff (Appellant)
- and –
1444707 ONTARIO LTD., MARY GENOVESE, 1422223 ONTARIO INC., RICHARD ROBBS, 1409133 ONTARIO INC., OLIVER GORDON, 1403161 ONTARIO INC., VIKEN KAHWAJIAN (a.k.a. VIK KAHWAJIAN), 1394135 ONTARIO LTD., 1483710 ONTARIO LTD., RONALD ANGLIN, BARB ANGLIN, 1498368 ONTARIO INC., LIZ LECLAIR, JASKHS ENTERPRISES INC., JOHN SZYMKOWIAK, 1376760 ONTARIO INC., KRIKOR KAHWAJIAN (a.k.a. KOKO KAHWAJIAN), 1363777 ONTARIO LTD., TOM RUSH, KRISTINE WATKINSON, 1375023 ONTARIO INC. and OLIVER GORDON
Defendants (Respondents)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: February 10, 2006
Date of Release: February 21, 2006