Court File and Parties
CITATION: Kaganovsky v. 2057057 Ontario Inc., 2011 ONSC 6210
DIVISIONAL COURT FILE NO.: 398/11
DATE: 20111018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CAROLYN KAGANOVSKY Plaintiff
– and –
2057057 ONTARIO INC., ABDUL HAFEEZ KHAN, PAULINE LALLA, PLATINUM ONE REALTY INC., B2B TRUST, TRUSTEE FOR SELF DIRECTED RETIREMENT SAVINGS PLAN NO. B602137, MICHAEL E. WEIR and WEIR, NAKON Defendants
Counsel:
John Russo and Marc Whiteley, for the Plaintiff
John Lo Faso and David Anthony, for the Defendants, 2057057 Ontario Inc., Abdul Hafeez Khan, Pauline Lalla, Platinum One Realty Inc. and B2B Trust, Trustee for Self Directed Retirement Savings Plan No. B602137
HEARD at Toronto: October 18, 2011
BEFORE: PARDU J. (orally)
Oral Reasons for Judgment
[1] The plaintiff moves for leave to appeal from a decision of Corrick J. dated August 12, 2011, setting aside an order of Master Muir made on June 8, 2011, in which he ordered the defendant Khan to produce copies of communications with his previous and current counsel relating to the amendment of his Statement of Defence.
[2] Khan had filed an affidavit in support of a motion to amend his pleading explaining how his previous solicitor misapprehended his position. Master Muir held that by doing so, he had waived solicitor/client privilege in relation to his solicitor/client communication on that issue.
[3] Corrick J. ordered that the matter should be returned to the Master hearing the motion to amend the Statement of Defence and that the motion for disclosure of solicitor/client communications could only be made if the amendment of the pleadings was made pursuant to Rule 51.05 where leave is granted to withdraw an admission, implicitly holding that if the amendment was made pursuant to Rule 26.01, the plaintiff could not rely on a waiver of privilege to require disclosure of the communications in issue, even though Khan placed those communications in issue by filing the affidavit in support of his motion to amend his pleadings, pursuant to Rule 26.01.
[4] In my view, there is reason to doubt the correctness of the decision of the motion judge, that whether or not there is waiver depends on the rule pursuant to which the amendment is ultimately made. In Land v. Kaufman, Salhany J. noted in similar circumstances at paragraph 20:
In my view, the privilege has been waived and the solicitor will be required to answer all questions pertaining to communications from the plaintiff on those issues which are the subject matter of the application, subject, of course, to relevancy.
[5] I am persuaded that this issue transcends the issues of the parties and is of general public importance and importance to the administration of justice.
[6] Like Justice Bielby in Pate v. Sinclair, [2011] ONSC 5401, I am persuaded that the issue as to whether there can be a conditional or partial waiver of solicitor/client privilege once a party has put those communications in issue, should be considered by an appellate court.
[7] Leave granted to appeal the decision of Corrick J. dated August 12, 2011.
COSTS
[8] Costs fixed at $5,000.00 and reserved to panel hearing the appeal, if it proceeds.
PARDU J.
Date of Reasons for Judgment: October 18, 2011
Date of Release: October 25, 2011
CITATION: Kaganovsky v. 2057057 Ontario Inc., 2011 ONSC 6210
DIVISIONAL COURT FILE NO.: 398/11
DATE: 20111018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU J.
BETWEEN:
CAROLYN KAGANOVSKY Plaintiff
– and –
2057057 ONTARIO INC., ABDUL HAFEEZ KHAN, PAULINE LALLA, PLATINUM ONE REALTY INC., B2B TRUST, TRUSTEE FOR SELF DIRECTED RETIREMENT SAVINGS PLAN NO. B602137, MICHAEL E. WEIR and WEIR, NAKON Defendants
ORAL REASONS FOR JUDGMENT
PARDU J.
Date of Reasons for Judgment: October 18, 2011
Date of Release: October 25, 2011