Court File and Parties
COURT FILE NO.: 566/08 DATE: 20081128
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ERNESTINA MIGLIOZZI Plaintiff
- and -
JAKE LOW-KEEN Defendant
Counsel: Joseph Markin, for the Plaintiff Catherine Ferrari, for the Defendant
HEARD at Toronto: November 28, 2008
Reasons for Judgment
1The plaintiff seeks leave to appeal from the interlocutory order of Echlin J., dated September 19, 2008.
2The motions court judge concluded that the first page of a reporting letter written to the defendant, Jake Low-Keen produced by the plaintiff in these proceedings was privileged and that based upon the conflicting evidence before him the privilege has not been waived. The motions judge declined to order questioning on the letter.
3I conclude that the plaintiff has not proved grounds justifying leave to appeal pursuant to rule 62.02(4)(a) or (b) of the Rules of Civil Procedure. This is an interlocutory motion. The issue as to how the plaintiff received a copy of the reporting letter and whether privilege has been weighed will be explored at a summary trial, which has been scheduled by the parties.
4The letter speaks for itself. The letter is written by a lawyer to the defendant, not the defendant’s father with respect to reporting ownership of the property in question. By claiming privilege, an adverse inference may well be drawn against the defendant at the summary trial. This however, is a matter for the trial judge.
5Echlin J. correctly considered the established legal principles and determined, based upon the conflicting evidence before him, that the reporting letter was prima facie privileged.
6I cannot conclude there is reason to doubt the correctness of his decision. This matter does not involve matters of such importance to engage the attention of Divisional Court. There are no conflicting cases requiring clarification by the Divisional Court.
7For these reasons, the plaintiff’s motion is dismissed.
8The parties agree that it would be appropriate to convert the summary judgment motion presently scheduled for December 12, 2008 to a summary trial to be heard on January 29, 2009, with an estimated time of one-half day to one day. This procedure would allow all issues with respect to the letter to be explored with the benefit of viva voce evidence.
9The parties agree that costs should be in the cause for this motion for leave to appeal, fixed in the amount of $2,500.00.
JANET WILSON J.
Date of Release: December 2, 2008
COURT FILE NO.: 566/08 DATE: 20081128
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ERNESTINA MIGLIOZZI Plaintiff
- and -
JAKE LOW-KEEN Defendant
REASONS FOR JUDGMENT
JANET WILSON J.
Date of Release: December 2, 2008