COURT FILE No.: 01-3546/04
DIVISIONAL COURT FILE NO.: 122/10
DATE: 20100503
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE MATTER OF THE ESTATE OF RITA PYTKA, deceased
BETWEEN:
MARILYN PYTKA and MIRANDA PYTKA-HUHTA by her Litigation Guardian, the Children’s Lawyer
Applicant
(Appellant)
– and –
SAUL PYTKA, Estate Trustee With a Will of the Estate of Rita Pytka, deceased
Respondent
(Respondent in Appeal)
Acting in person
Jonathan F. Lancaster, Counsel for the Respondent
Bryn Gray, Counsel for Blake, Cassels & Graydon LLP
HEARD at Toronto: Monday, April 26, 2010
REASONS
Greer J.:
[1] Marilyn Pytka, the Applicant, moves for the following relief:
an Order granting her Leave to Appeal from the Order of Madam Justice Conway (“the Judge”) dated February 9, 2010 (“the Order”);
an Order setting a timetable in place for the resumption of her original Application;
an Order staying the Order of the Judge, pending appeal or the hearing of the Motion for leave to appeal, specifically with reference to Blake, Cassels & Graydon LLP from disclosing files and retraining it from proceeding with any actions.
the opinion, advice and direction of the Court with respect to the conflict of interest of Fasken Martineau DuMoulin LLP representing the Estate of Rita Pytka (“the Estate”).
[2] The Grounds for the Motion are set out in the Applicant’s Notice of Motion for Leave dated March 4, 2010 in paragraphs (a) to (u) thereof. Most of the grounds set out are background information. The Applicant does say, however, in paragraph (f) that, “There is good reason to doubt the correctness of the order sought to be appealed and the proposed appeal involves matters of such importance that leave to appeal should be granted.”
[3] The Motion before the Judge was an interim Motion. The Applicant is therefore in error in paragraph (u) of her Notice of Motion, that the Order “…is a final order and Leave to Appeal is not required.” The Order is an interim Order in the Estate’s on-going litigation proceeding commenced by the Applicant and Leave is therefore required.
[4] The Test for Leave is set out in subrule 62.02(4) of the Rules of Civil Procedure. It reads as follows:
62.02(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted, R.R.O. 1990, Reg. 194, r. 62.02(4).
It is a two-part test for each subsection of that rule. The Applicant is not relying on subparagraph (a). She relies only on subparagraph (b), where not only does the Leave Judge have to have good reason to doubt the correctness of the Order in question, the proposed appeal must also involve matters of such importance that, in his or her opinion, leave to appeal should be granted.
Some background information
[5] The Motion before the Judge was a procedural Motion, which arose in the Estate Litigation in this matter. Rita Pytka, the mother of the Applicant, died on January 16, 2004, leaving a Will executed in 1985. Litigation ensued among the beneficiaries of the Estate. A settlement of the issues was entered into by the beneficiaries of the Estate on June 19, 2007. On June 12, 2009, the Applicant moved to set aside the settlement. All parties were represented by counsel in reaching the settlement. The Applicant was represented by Blake, Cassels & Graydon LLP (“Blakes”) and the Estate by Fasken Martineau DuMoulin LLP.
[6] In the current litigation, the Applicant is self-represented. The Estate brought on a Motion before the Judge for the “…opinion, advice and direction of the Court with respect to waiver of privilege in the Affidavit of Marilyn Pytka sworn June 12, 2009 (the “Pytka Affidavit”) and exhibits thereto and the Affidavit of Neil Huhta sworn May 22, 2009 (the “Huhta Affidavit”)”.
[7] It also asked for an Order allowing it to obtain copies of files and documents in the possession of Blakes, setting out reference to certain paragraphs and exhibits. It further asked for an Order that a witness to the Applicant’s pending Motion, be examined.
[8] In her Order of February 9, 2009, the Judge granted the relief requested by the Estate respecting the obtaining of specified documents relating to certain paragraphs in the Applicant’s Application to set aside the settlement and certain exhibits thereto. The Judge further ordered that the witness appear for examination, that Blakes give the Applicant copies of all documentation it was ordered to give to the Estate and that they be delivered by February 23, 2010.
[9] Counsel for Blakes appeared before me on the Applicant’s Motion for leave. He says Blakes had twelve (12) boxes of files in question and they have gone through all those files and are prepared to produce all copies ordered to be produced by the Judge. In addition, Blakes says that they will produce a copy of the whole file and give it to the Applicant.
The Applicant’s position
[10] The Applicant says the Judge erred in making the Order she did. The Applicant says the Judge’s Order is “unfair” to her because it allows Blakes to determine what documents are to be given to her and the Estate. She says that she did not waive any privilege and the Judge should not have made such an Order. She says the Judge erred in taking away her right to make decisions about her file. She sees there as being an “unequal balance of power” in this case because she is self-represented.
The Respondent’s position
[11] The Respondent says Leave should not be granted as the Applicant has not met either part of the test in rule 62.02(4). The Judge properly exercised her discretion, says the Respondent, in coming to the decision she did. The Respondent made reference to the many paragraphs in the Applicant’s original Affidavit, where the Judge found privilege to have been waived by the Applicant. Given those findings, says the Respondent, Leave should not be granted.
Analysis
[12] The Motion for Leave is dismissed for the reasons, which follow. Firstly, the Judge found as a fact that the Applicant, in her Notice of Motion and Affidavit, has squarely put Blakes’ conduct and advice, given to her by them, into play as a significant basis or reason for the settlement to be set aside. The Judge also refers to the “numerous exhibits which are correspondence to and from Blakes concerning her case. By doing so, there is no question she has waived privilege.” She concluded:
To the extent that she has put her reliance on Blakes’ advice, their conduct and treatment of her in issue, she can no longer assert privilege on those issues: per Zesta v. Cloutier. See also discussion in Bank Leu AG v. Gaming Lottery, [1999] O.J. 394.
[13] The Judge notes that once those matters in issue are raised, the Estate must respond and therefore must have access to Blakes’ files. They require those files in order to be able to respond to the claims put forth by the Applicant.
[14] Blakes is only providing the Estate with the limited documentation and exhibits referred to in the Judge’s Order. The Applicant will receive a copy of the whole file.
[15] In my view, there is no good reason to doubt the correctness of the Order in question. The Judge properly balanced the interests of full disclosure for purposes of the Applicant’s Motion to set aside the settlement against the preservation of solicitor-client and litigation privilege. The Applicant clearly placed her state of mind in issue in what she said in her lengthy affidavit. The Judge correctly set out the law in her reasons. She specifically referred to the principles set out in Bank Leu, supra.
[16] In Greslik v. Ontario Legal Aid Plan (1998), 65 O.R. (2d) (Div.Ct.) at pp. 112 and 113, the Court, in referring to subrule 62.02(4) said that, “The conditions for granting leave are conjunctive.” I have found there is no good reason to doubt the correctness of the decision. Further, there is nothing in the decision that is of “such importance” that leave should be granted. The Motion was a common procedural Motion based on well-recognized legal principles. There is nothing in the decision which is of “general importance to the public or to the development of the law and the administration of justice” as noted in Greslik, supra.
[17] The Motion asking for Leave to Appeal by the Applicant is therefore dismissed. All other relief requested by the Applicant in her Notice of Motion for Leave is also dismissed. It is not properly part of a Leave Motion to ask the Judge to set a timetable for the litigation nor is it part of such Motion to ask the opinion, advice and direction of the Court with respect to the Applicant’s allegation that the Estate’s Counsel, Fasken Martineau DuMoulin LLP is in a position of conflict of interest.
[18] If the parties cannot otherwise agree on Costs of this Motion, I will receive brief written submissions no longer than three (3) pages, from each on the question of Costs by May 17, 2010.
Greer J.
Released: May 3, 2010
COURT FILE No.: 01-3546/04
DIVISIONAL COURT FILE NO.: 122/10
DATE: 20100503
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE MATTER OF THE ESTATE OF RITA PYTKA,
deceased
BETWEEN:
MARILYN PYTKA and MIRANDA PYTKA-HUHTA by her Litigation Guardian, the Children’s Lawyer
Applicant
(Appellant)
– and –
SAUL PYTKA, Estate Trustee With a Will of the Estate of Rita Pytka, deceased
Respondent
(Respondent in Appeal)
REASONS
Greer J.
Released: May 3, 2010