Court File and Parties
COURT FILE NO.: FS-14-398922 DATE: 20170622 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anita Bielak, Applicant – AND – Eli Dadouch, Respondent
BEFORE: Justice E.M. Morgan
COUNSEL: Bryan Smith and David Chernos, for the Applicant Jonathan Lisus, Shaun Laubman, Daryl Gelgoot, for the Respondent
HEARD: June 20, 2017
Endorsement
I. Privilege and confidentiality issues
[1] After 23 years of marriage and 4 children ages 19 to 26, Anita Bielak and Eli Dadouch separated in July 2013. Just before their separation, in May 2013 and early July 2013, Ms. Bielak surreptitiously photographed several pages of handwritten notes that Mr. Dadouch had in his briefcase.
[2] Three years later, in May 2016, Mr. Dadouch’s counsel discovered during the course of the discovery process that Ms. Bielak had these photos in her possession. Counsel for Mr. Dadouch wrote to counsel for Ms. Bielak identifying them as solicitor-client privileged documents. Ms. Bielak takes the position that they are not privileged documents and has to date refused to hand the photos over to Mr. Dadouch.
[3] At a case conference in August 2016, Kiteley J. ordered Ms. Bielak to provide an affidavit identifying Mr. Dadouch’s documents that she has in her possession and setting out how she obtained the documents in question. She has done so, and Mr. Dadouch has now brought a motion compelling her to hand over to him all copies of the documents.
[4] The family law litigation has caused a significant amount of emotional turmoil for the children. Although they are all adults, several of them suffer from anxiety and have reacted with anguish to the dispute between their parents. The children all reside with their mother, and much of their anguish manifests as anger directed toward their father.
[5] Mr. Dadouch also seeks orders sealing the court proceedings so that the children cannot have access to the file. He also seeks to prevent public disclosure of the family’s identity by initializing the names of all of the parties in any publication of the proceedings. In addition to those concerns, Mr. Dadouch seeks to restrain Ms. Bielak from talking to the children about any aspect of the litigation.
II. Privilege and the purloined notes
[6] Ms. Bielak snuck into Mr. Dadouch’s briefcase three times to photograph documents that did not belong to her: on May 1, May 25, and July 10, 2013. This period of time just prior to their separation, and when their marriage was breaking up, coincided with Mr. Dadouch seeking legal advice from a number of different sources.
[7] The documents themselves are found at exhibits “D”, “E”, and “F” of Ms. Bielak’s affidavit dated November 1, 2016 (collectively the “Purloined Notes”). They are comprised of handwritten notes created by Mr. Dadouch, and contain notations and charts referencing various corporate entities and trusts in Mr. Dadouch’s holdings. It is worth observing that Ms. Bielak makes a number of allegations in the underlying litigation about Mr. Dadouch’s positioning and hiding assets within a maze of corporations and trusts. She alleges that he has been manipulating these entities to make it more difficult to trace his assets. I say this not in order to pass any judgment one way or the other on the allegations, but rather to highlight that the allegations match the otherwise somewhat cryptic content of Mr. Dadouch’s notes. Mr. Dadouch was engaged in some kind of corporate reorganizing or strategizing; although each of the spouses puts a different spin on it, neither side contests that corporate and trust organization was the subject matter of the Purloined Notes.
[8] In any case, Mr. Dadouch deposes in a series of affidavits that the Purloined Notes correspond with the series of meetings he had in the spring and summer of 2013. He met with one of his solicitors on May 9, 2013, with another set of solicitors on May 25, 2013, and then again in late July 2013. He indicates that in all three meetings he was discussing strategy and corporate and trust matters in relation to his anticipated family law proceedings. He further deposes that that the Purloined Notes were made either in preparation for or as a result of this series of meetings.
[9] The May 9th meeting was apparently attended by Mr. Dadouch, two of his accountants, and Mr. Dadouch’s longtime friend and advisor, lawyer Stephen Brunswick. Mr. Dadouch’s corporate and trust holdings were discussed, according to Mr. Dadouch, with a view to strategizing the matrimonial litigation that was on the horizon. The first set of Purloined Notes relates to this meeting.
[10] In his first affidavit addressing the May 9, 2013 meeting, Mr. Dadouch said that his corporate lawyer, Joseph Fried, was also in attendance, but in a subsequent affidavit he corrected that and stated that Mr. Fried was in fact not a participant in this meeting. The Purloined Notes, however, make reference to Mr. Fried’s law partner, Gary Goldfarb, who although not physically present at the meeting was consulted or referenced in some capacity.
[11] The wrinkle here is that Mr. Brunswick, while he was indeed Mr. Dadouch’s lawyer over the course of many years, was at the time representing Ms. Bielak in unrelated litigation involving her own family’s business. Accordingly, Ms. Bielak’s position is that Mr. Brunswick could not have been representing Mr. Dadouch at the same time, as that would have put him in an impermissible conflict. Ms. Bielak’s counsel submits that if Mr. Brunswick was the only lawyer at a meeting with Mr. Dadouch and his accountants, the meeting must not have been privileged.
[12] Mr. Brunswick also attended or was instrumental in arranging the other meetings in this sequence with Mr. Dadouch. He introduced Mr. Dadouch to prominent divorce lawyer Stephen Grant, with whom Mr. Dadouch met on May 21, 2013. Mr. Dadouch’s first affidavit addressing this meeting indicated that he was accompanied at that meeting by his family law counsel, Harold Niman and Daryl Gelgoot, along with Mr. Fried. Again, he subsequently corrected himself after checking his records and speaking with Mr. Fried and in his follow-up affidavit deposed that Mr. Fried was not in attendance.
[13] Mr. Grant has submitted a brief affidavit here indicating that the meeting lasted about 1.5 hours. According to Mr. Grant, they discussed equalization of net family property and various corporate structures and strategies. Mr. Grant has also produced his invoice to Mr. Dadouch which corroborates this account of the meeting. It was by any definition a meeting covered by solicitor-client privilege.
[14] The second set of Purloined Notes were taken from Mr. Dadouch’s briefcase and photographed by Ms. Bielak on May 25, 2013. These pages, in Mr. Dadouch’s handwriting, found by Ms. Bielak just 4 days after the May 21st meeting with his family lawyers, contain notations about Mr. Dadouch’s companies and make reference to a trust. Mr. Dadouch deposes that these were the notes of his meeting with Mr. Grant et al., and there is no reason to suspect otherwise. Although again the photographed page contains some cryptic bits of handwritten notations, the subject matter conforms to what we know was discussed with Mr. Grant.
[15] On July 15, 2013, Mr. Dadouch emailed Mr. Grant asking for another meeting to discuss “corporate structures” and “strategies”. Given the context and his previous meetings, it was obvious that this was part of his ongoing planning. Indeed, Ms. Bielak found the evidence of that planning deep in the folds of Mr. Dadouch’s briefcase.
[16] Five days prior to Mr. Dadouch’s email to Mr. Grant, on July 10, 2013, Ms. Bielak found in Mr. Dadouch’s brief case and photographed a handwritten page on which Mr. Dadouch had drawn a chart of his own corporate structure. While Mr. Dadouch’s counsel refused on the grounds of privilege to have him answer whether this was a schematic drawing of the existing corporate relationships or of planned changes in the corporate relationships, it is obvious that the chart lays out the companies known to be in his corporate empire. Mr. Dadouch says that he produced this set of notes for the upcoming meeting with Mr. Grant, which we know from his email he requested later the same week.
[17] At the July meeting with Mr. Grant, Mr. Brunswick was apparently in attendance, along with Messrs. Niman and Gelgoot. Ms. Bielak deposed that she thought that this meeting had to do with the upcoming marriage of one of her sons, as Mr. Dadouch had wanted to get some advice about protecting the son’s property entitlements. Again, however, Mr. Grant confirms that the meeting had to do with Mr. Dadouch’s own matrimonial situation and various corporate and trust strategies he was weighing.
[18] Mr. Brunswick was examined under Rule 39 about his involvement in this series of meetings. He conceded that he would have been in a conflict of interest as between his representation of Ms. Bielak and his counselling of Mr. Dadouch. He testified, however, that he understood that he was in attendance at the meetings not in his capacity as lawyer but in his capacity as friend and potential trustee. He also indicated that the family law issues that were percolating between Mr. Dadouch and Ms. Bielak were only discussed “tangentially”, and that it was more of a general discussion about Mr. Dadouch’s overall assets and corporate structure.
[19] While I respect Mr. Brunswick and sympathize with the bind he found himself in – an old family friend, counsellor, and lawyer caught between two spouses about to go into litigation against each other – his view of the meetings is unrealistic. One does not invite one’s old confidant and lawyer to a meeting about corporate restructuring, setting up trusts, and other asset strategizing in anticipation of litigation without seeking advice from him.
[20] Counsel for Mr. Dadouch has pointed out that Mr. Brunswick is a litigation lawyer, not a corporate or trusts lawyer, a fact that is confirmed by his representation of Ms. Bielak in her own litigation against her family members. If Mr. Brunswick participated in Mr. Dadouch’s meetings as a potential trustee of Mr. Dadouch’s assets, he was not just a nameless official from a bank or trust company. Mr. Dadouch’s notes indicate that Mr. Brunswick was deeply involved in the discussions at this series of meetings, and there is no reason to doubt that. Mr. Grant, who had no conflict and who is entirely credible here, has confirmed that the subject matter of the sequence of meetings was precisely within the area covered by solicitor-client privilege.
[21] Given the subject matter of the Purloined Notes and the timing of their having been found in Mr. Dadouch’s brief case within days of each of his lawyer meetings, they give all the appearance of being handwritten records of, or preparatory notes for, those meetings. I have little hesitation in concluding that the Purloined Notes are privileged and should never have been in Ms. Bielak’s hands.
[22] Counsel for Ms. Bielak submits that the Purloined Notes do not on their face contain any legal advice, and that for a document to be privileged it must contain actual advice and not just facts that are otherwise not privileged. Citing Intact Insurance Co. v 1367229 Ontario Inc., 2012 ONSC 5256, [2012] OJ No 4498, he submits that, “Privilege does not attach to all communications between a lawyer and their client. A party seeking privilege cannot simply cloak notes, documents or communications with privilege merely because a lawyer was involved or handled the documents.”
[23] I agree with the general proposition that a document does not become privileged just because of its presence at a lawyers’ meeting. If one discusses an article from the morning newspaper with one’s legal counsel, the published article does not suddenly become privileged and off limits to the rest of the world of readership. However, that is not analogous to the case here.
[24] The present case deals with handwritten notes made by Mr. Dadouch either at, in the aftermath of, or in anticipation of meetings with his legal team. The markings on the Purloined Notes are meaningful to him in a way that may not be meaningful to anyone else. If legal strategies for holding various assets were discussed, and Mr. Dadouch drew what appears to be a corporate chart with short-form or initialized company names in boxes, and underneath the chart he jotted down the word “Trust” followed by a question mark – e.g. “Trust?” – who’s to say that this notation is not his record of legal advice? He produced handwritten notes for himself, and is entitled to do so in whatever form he wishes.
[25] Mr. Dadouch’s lawyers were certainly correct in refusing to have him answer questions in cross-examination that would decipher the Purloined Notes for Ms. Bielak. It is not for one party to rummage around in the other’s confidential papers and to then pick apart the notes she finds in an effort to decipher the words or to second guess the meaning of the privileged notations.
[26] Once identified by Mr. Dadouch’s lawyers as privileged documents, Ms. Bielak should have turned the photos of the Purloined Notes over to his lawyers and deleted them from her cell phone. Then, if she and her counsel thought it advisable, she could have challenged the assertion of privilege in the usual way. She should not have simply held onto them on the theory that she understands Mr. Dadouch’s handwritten notations better than he does. That compelled Mr. Dadouch to bring this unusual motion for return or destruction of the photographic and digital copies.
[27] The end result would have been the same – that is, the privileged character of documents does not change regardless of who is the moving party – but the respect for legal process would have been elevated rather than degraded. In a remarkably similar case, the Court of Appeal in the UK has recently pointed out that since the Middle Ages the law of England has expressed an aversion to the kind of self-help practiced by Ms. Bielak, and has prohibited “revenge or distress of his own authority, without award of the King’s court”: Tchenguiz v Imerman [2011] 2 WLR 592 (CA), at para 117, quoting Statute of Marlborough, 1267, s. 1.
[28] The taking of documents, or their copying for use where the copier has no right to them, is conduct that cannot be condoned. Again, in the words of the English Court of Appeal, “If, as I hold, the removal, use and retention of documents can amount to the tort of interference with property and as such be a civil wrong, then the justification for the wife’s actions, namely, to prevent the husband’s wrongfully withholding them, cannot be legitimate. In the words of the old adage: ‘Two wrongs don’t make a right’”: White v Whithers LLP, [2009] EWCA Civ 1122 (CA), at para 59 (per Ward LJ).
[29] The Purloined Notes that Ms. Bielak photographed and then replaced in Mr. Dadouch’s briefcase were privileged. That this is matrimonial litigation rather than commercial or some other form of civil litigation makes no difference to the rules governing confidentiality and privilege. “The fact that a defendant has a means of access to get into a claimant's room or even into his desk does not by any means necessarily lead to the conclusion that he has the right to look at, let alone to copy, or even disseminate, the contents of the claimant's private or confidential documents contained therein”: Tchenguiz v Imerman, at para 79.
[30] Ms. Bielak was not entitled to use surreptitious means to acquire copies of the Purloined Notes, and she is not entitled to keep them, or copies of them, in her possession.
III. Confidentiality and the children
[31] Mr. Dadouch has also moved for a number of orders designed to shield his and Ms. Bielak’s children from accessing, or learning about, the allegations, evidence, and findings in this case. He seeks to seal the court file, publish the resulting rulings and judgments under initials so that the parties cannot be identified, and, perhaps most far-reaching, prohibit Ms. Bielak from discussing any aspect of the litigation with the children.
[32] This request arises as a result of the conduct and vulnerabilities of at least two, and possibly all four, of the children of the marriage. Although all of the children are adults, several of them suffer from anxiety-related issues that cause them and their family-members great distress. Among other things, this distress has manifested in the form of extreme and erratic anger, particularly directed at Mr. Dadouch. Since much of the communication between them is by email, the record is replete with examples of these outbursts. The language used directed toward Mr. Dadouch by his children in the emails is insulting and often violent and obscene, while the photoshopped pictures depict family members and acquaintances in degrading and sometimes even threatening ways. One’s heart goes out to the children of this marriage who have authored these missives; they are seething with emotional pain.
[33] I understand that at least one of the children of the marriage – the author of most, but not all, of the troubling communications – is in therapy and under care of a psychologist. It is a relief to hear that. A young adult in his 20’s is unlikely to be shielded from the reality of his parents’ warfare and family turmoil, regardless of what a court might order. The only effective intervention and remedy is a medical/therapeutic one, not a legal one.
[34] While s. 137(2) of the Courts of Justice Act authorizes a court to seal and treat as confidential any document or other material filed in a civil proceeding, this is a power that is to be used very sparingly. The openness and transparency of the judicial system are essential to the administration of justice. Dickson J. made this point eloquently in MacIntyre v Nova Scotia, [1982] 1 SCR 173, 183, quoting Jeremy Bentham to the effect that: “Where there is no publicity there is no justice.’ ‘Publicity is the very soul of justice.’” The dangers of secret adjudications to a free and democratic society are self-evident.
[35] Sealing orders are most often effective where there is need to protect vulnerable children from a public airing of their family’s litigation: see CMG v RG, 2012 ONSC 2496. In those types of instances, “the protection of children probably trumps public access”: MSK v TLT, 2002 CarswellOnt 3091, at para 24.
[36] In the present case, there is no evidence that a public airing of the issues between Mr. Dadouch and Ms. Bielak will cause injury to the children in the sense that a member of the public may do them harm. It is not the public that is the concern here; rather, the motion is directed at restraining the airing of the litigation issues among the children themselves.
[37] A confidentiality order should only be granted when a two-part test has been met: (a) the order must be necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the confidentiality order, including the effect of the order on the right to a fair trial, outweigh its deleterious effects, including the public interest in open and transparent judicial proceedings: Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, [2002] 2 SCR 522.
[38] As already indicated, I am skeptical that there will be any salutary effects resulting from a sealing order. The children of the marriage are of an age and at a level of awareness of the world around them that the parents cannot hide the contentious issues. If the parents are concerned to shield their adult children from the unattractive side of their dispute, they might consider toning down the recriminations that they have been casting at each other.
[39] Further, it does not seem realistic or even feasible to require Ms. Bielak to stop talking to the children about issues in the litigation. Many of the issues touch on household finances, life issues that relate to the adult children, purchase of family vehicles, and the like. The order sought by Mr. Dadouch threatens to make daily life virtually impossible for Ms. Bielak. It would doubtless spawn further motions and acrimony as allegations of its breach could foreseeably be made on a constant basis.
[40] There is no need here for a sealing or confidentiality order respecting the court file. Nor are there grounds for a gag order respecting conversations in Ms. Bielak’s home. There is only a need to care for the emotionally ailing children of the marriage, and that will result from a change in approach by the parents rather than from a court order.
IV. Disposition
[41] Mr. Dadouch’s motion for an Order requiring Ms. Bielak and her lawyers to return all copies of the Purloined Notes and to destroy all electronic copies of them in her or her lawyers’ possession is granted.
[42] Mr. Dadouch’s motion for a sealing and confidentiality Order, and for an Order restraining Ms. Bielak from discussing any of the issues directly or indirectly with her and Mr. Dadouch’s children, is dismissed.
[43] Counsel may make written submissions in respect of the costs of these motions. I would ask that they be no more than 3 pages and that they be forwarded directly to my assistant within one week of this judgment.
Morgan J. Date: June 22, 2017