CITATION: Mayer v. Rubin, 2017 ONSC 3190
DIVISIONAL COURT FILE NO.: 116/17
DATE: 20170524
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ANNIE MAYER, Estate Trustee of the Estate of Johann Rubin and personally v. MORRIS ERIC RUBIN, Estate Trustee of the Estate of Johann Rubin and personally, and others
BEFORE: NORDHEIMER J.
COUNSEL: N. Tourgis & H. Juroviesky, for the moving parties, Morris Eric Rubin, Ida Rubin, Sarah Werner and Faigy Esther Hammer
P. Griffin, for the responding party, WEL Partners
HEARD at Toronto: written submissions
E N D O R S E M E N T
[1] The moving parties seek leave to appeal from the decision of Myers J., dated March 1, 2017, in which the motion judge dismissed the moving parties’ motion to disqualify the applicant’s lawyers of record and for an order that the motion record be sealed.[^1]
[2] This litigation involves allegations by the applicant daughter that her siblings and mother have improperly administered the estate of their late father. The facts underlying the motion are set out in the endorsement of the motion judge and need not be repeated here.
[3] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that reads:
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.
The moving parties rely on both tests on their motion.
[4] The moving parties have not demonstrated that there is any conflict in principle between the motion judge’s decision here and that reached in other cases. At best, the moving parties can point to other cases, with different facts, in which different conclusions were reached. That does not satisfy the requirement of conflicting decisions for the purposes of the first test.
[5] In terms of the second test for leave to appeal, the moving parties have not pointed to anything that would satisfy me that there is good reason to doubt the correctness of the motion judge’s decision. The motion judge found that, assuming there was confidential information imparted, the moving parties had waived the confidentiality by placing the material in the motion record and filing it with the court. More specifically, the motion judge said, at para. 14:
The respondents’ evidence includes a full description of the purportedly confidential issues that Mr. Juroviesky had discussed with Mr. Handelman including a copy of the May 5, 2015 email. Mr. Juroviesky served the motion record on the applicant’s counsel and filed it with the court in the ordinary course. The motion record is currently in the public record and is available to all who might attend the courthouse and search the court’s files. In addition, during cross-examination of Ms. Mayer for this motion, Ms. Tourgis showed the email to Ms. Mayer and asked questions about it.
[6] I have no doubt regarding the correctness of the motion judge’s conclusion that, having done so, the moving parties had voluntarily and intentionally disclosed the very confidential information that they claimed, through their motion, they wished to protect. As the motion judge pointed out, there were processes available to the moving parties by which they could have raised the issue without revealing the confidential information. The moving parties choose not to avail themselves of any of those processes.
[7] In any event, I do not find that an appeal is desirable or that the issue raised is of such importance that leave to appeal ought to be granted under the second branch of either test. As the responding party submitted in her factum:
Waiver of privilege and inadvertent disclosure are well entrenched principles repeatedly canvassed and applied in the case law.
[8] Consequently, the motion for leave to appeal is dismissed. The moving parties will pay to the responding party her costs of the motion on the partial indemnity scale, which I fix in the amount of $8,000, inclusive of disbursements and HST, within thirty days. I see no basis for awarding costs on a higher scale. It does not follow from the fact that the motion judge awarded costs on the full indemnity scale that any determination of costs in a subsequent step in the proceeding should be similarly treated. In any event, the reasons why the motion judge exercised his discretion to order costs on the full indemnity scale do not apply to this motion.
NORDHEIMER J.
DATE: May 24, 2017
[^1]: Rubin Estate v. Rubin Estate, [2017] O.J. No. 1007 (S.C.J.)