DIVISIONAL COURT FILE NO.: 124/15 and 125/15

DATE: 20150624 CORRIGENDA: 2015 ONSC 4048

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: ONTARIO PSYCHOLOGICAL ASSOCIATION (Responding Party/ Plaintiff)

and

CHARLOTTE (CARLA) MARDONET, GABRIAL BENSUSAN and 2181420 ONTARIO INC. (Moving Parties/Defendants)

COUNSEL: Paul D. Stern, for the Moving Party, Charlotte Mardonet

Peter-Paul E. Du Vernet, for the Moving Parties, Garial Bensusan and 2181420 Ontario Inc.

David F. O’Connor and Jason J. Tan, for the Responding Party

HEARD: In Toronto, in writing

E N D O R S E M E N T

(Leave to Appeal to the Divisional Court)

MOLLOY J:

Introduction

[1] Ms Mardonet had been an employee of the Ontario Psychological Association (“OPA”) over a period of many years. The OPA terminated her employment, purportedly for cause, in November 2013. In May 2014, the OPA contacted the police regarding alleged financial irregularities in its accounts during the period of Ms Mardonet’s employment. Subsequently, she was charged criminally with fraud exceeding $5000.00. That criminal charge is still outstanding.

[2] In July 2014, the OPA commenced a civil action against: Ms Mardonet; her husband Gabrial Bensusan; her husband’s numbered company; and various other defendants. The OPA sought civil remedies against Ms Mardonet, Mr. Bensusan and the numbered company for fraud. Within that action, the OPA brought a motion for a Mareva injunction.

[3] These three defendants brought a motion for an order that all documents including affidavits and transcripts of examinations of or from any of them in relation to the Mareva injunction be treated as confidential, not be filed, and be sealed from the public record.

[4] The motion judge dismissed the defence motion. He held that such an order was unnecessary because any affidavits filed or examinations conducted in the course of the action were already protected by the privilege against self-incrimination. He relied on the Supreme Court of Canada’s decision, R. v. Nedelcu[^1], in concluding that the defendants were “compelled” witnesses within the meaning of the case law on self-incrimination by virtue of the fact that they were “compellable,” even when they filed affidavits “voluntarily.” Therefore, any evidence they provided would be protected under s. 13 of the Charter of Rights and Freedoms.

[5] Further, the motion judge ruled that the implied undertaking rule at common law limits the use the recipient can make of information obtained by disclosure in the civil proceeding.

The Test for Granting Leave to Appeal

[6] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and that the test to be met is a very strict one. There are two possible branches upon which leave may be granted; both branches involve a two-part test and in each case, both aspects of the two-part test must be met before leave may be granted.

[7] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is in the opinion of the judge hearing the motion “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts.[^2]

[8] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong; that aspect of the test is satisfied if the judge granting leave is satisfied that the correctness of the order is open to “very serious debate.”[^3] In addition, the moving party must demonstrate matters of importance that go beyond the interest of the immediate parties and involve questions of general or public importance relevant to the development of the law and the administration of justice.[^4]

Ruling

[9] There is no conflicting decision as required by Rule 62.02(4)(a). The moving parties rely upon the decision of C. Campbell J. in Sun-Times Media Group v. Black.[^5] In that case, the principal defendant Conrad Black was facing a civil action as well as criminal charges in the State of Illinois. The plaintiff, Sun-Media, commenced an action in Ontario in which the only relief sought was a Mareva injunction. Campbell J. held that a Mareva injunction is an interlocutory order that is normally only granted in support of other substantive relief claimed in an action. It is not a self-supporting cause of action. He therefore stayed the action.

[10] The plaintiffs in the Sun-Media case had delivered summonses to witnesses in respect of Conrad Black and his wife. Campbell J. held that any right to examine the witnesses would only arise after the injunction had been granted, or if a defence affidavit had been filed upon which the right to cross-examine was sought. Further, he noted that there is a difference in the immunity regime in Canada and the United States and that there was “more than a risk that compelled testimony given in Canada without the protection of the Fifth Amendment to the United States Constitution might well find its way into the hands of the U.S. prosecution and before the U.S. Criminal Courts.”[^6]

[11] Campbell J. made no finding in Sun-Media as to whether a defendant who delivered an affidavit would be a “compelled” witness and entitled to protection against self-incrimination. He also did not deal at all with the issue of the implied undertaking as to the use that could be made of any information disclosed in the civil action. His ruling about the impropriety of the summonses issued in relation to the Mareva injunction was based on the fact that this was a pre-emptive move before any material was filed by the plaintiff to support the basis for the injunction sought. That is not the case here. Further, Justice Campbell was concerned about the difference in the immunity laws as between Canada and the United States, given that Mr. Black was facing criminal prosecution in the United States. That concern does not arise in the case before me. Finally, the reference to Mr. Black’s testimony being “compelled” (as set out in para. 52) is consistent, rather than inconsistent, with the approach taken by the motion judge in the case before me.

[12] I do not find the decision in Sun-Media to be in conflict with the decision of the motion judge in this case. Accordingly, the test under Rule 62.02(4)(a) is not met.

[13] Turning to the second basis for leave under the Rule, I find no reason to doubt the correctness of the decision of the motion judge as required under Rule 62.02(4)(b).

[14] In my view, the motion judge considered and correctly applied binding and well-settled authority from the Supreme Court of Canada on this issue. I see no reason to find otherwise.

[15] Since neither test for leave to appeal is met, this motion for leave to appeal is dismissed.

Costs

[16] Costs of the leave to appeal motion are fixed at $2000.00. In my view, the amount claimed by the plaintiff is somewhat excessive given that this is a motion in writing. The defendants submit that the costs should be payable in the cause of the Mareva injunction, as was provided for by the motion judge on the motion before him. The motion judge made that order because there were two sets of motions before him; one from the defendants and one from the plaintiff. He dismissed all of the motions, but nevertheless found that it was not unreasonable to bring any of them as a matter of prudence. That is not the situation before me. Further, the material filed by the plaintiff shows that the defendants did not deliver affidavits in response to the Mareva injunction in any event, that the defendants consented to a non-dissipation order on May 22, 2015, and that the Mareva injunction hearing is therefore not proceeding. In these circumstances, it is appropriate that the costs ordered in respect of the leave to appeal be awarded in the ordinary course.

Order

[17] Accordingly, an Order shall issue in each of Div. Ct. files 124/15 and 125/15 dismissing the motion for leave to appeal with costs payable to the plaintiff in the amount of $1000, payable forthwith. For clarity, that is $1000 in costs in each proceeding, for a total of $2000.

MOLLOY J.

Date: June 24, 2015

CORRIGENDA

Note: the neutral citation number has been changed from ONSC 4048 to 2015 ONSC 4048.

[^1]: R. v. Nedelcu, 2012 SCC 59 [^2]: Comtrade Petroleum Inc. v. 490300 Ontario Ltd.¸(1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div.Ct.). [^3]: Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen Div., per Farley J.) [^4]: Rankin v. McLeod Young Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div.Ct.). [^5]: Sun-Times Media Group Inc. v. Black, [2007] O.J. No. 795, 2007 CarswellOnt 1186 [^6]: Ibid, para. 52