Court File and Parties

Court File No.: FS-19-0009906 Date: 2021-02-23 Superior Court of Justice - Ontario

Re: Jennifer Dixon, Applicant And: Peter Robert Lindsay, Respondent

Before: Kiteley J.

Counsel: Applicant, self-represented Stephen J. Codas and Sarah Strathopolous, counsel for the Respondent

Heard: November 24, 2020

Endorsement

Background

[1] On October 6, 2020, I heard submissions on Ms. Dixon’s request to adjourn the urgent motion. Mr. Codas did not object to the adjournment but he sought terms to which Ms. Dixon did not agree.

[2] On October 8, 2020, I issued a short endorsement directing Mr. Lindsay to allocate the emails numbered and listed in the 41 page log provided by Google Cloud Support into three categories and he did so immediately.

[3] On October 9, 2020 I issued an endorsement which sets out the background based on the evidence filed on behalf of Mr. Lindsay on which I rely in this endorsement. In that endorsement I established these categories of emails:

• Category A: Solicitor and Client privilege between the Respondent and his family law lawyer(s)
• Category B: Solicitor and Client privilege between the Respondent and his clients
• Category C: all other communications that are not protected by solicitor client privilege but may be protected by privacy rights in civil proceedings.

[4] I made the following orders:

16. . . . By October 20, 2020, the Applicant shall serve but not file an affidavit with respect to Category A and Category B referring by number of each email, those which she had in her possession; those which she had had in her possession which she had deleted or destroyed; those which she had shared (whether in hard copy, electronically or orally) with another person whom she will name.
17. Pending a decision on the motion, the Applicant (or anyone on her behalf), directly or indirectly, is prohibited from disclosing, publishing, disseminating, or sharing with any third parties (whether in hard copy, electronically, or orally) and is prohibited from making copies (hard copy or electronically) of any of the Respondent’s email communications referred to in Category A, B, and C.
18. Pending a decision on the motion, the Applicant is prohibited from using or referring to any of the email communications referred to in Category A, Category B, or Category C for any purpose whatsoever and in any proceeding before any Court other than this court for the Respondent’s motion.
19. Pending a decision on the Respondent’s motion, the Applicant (or anyone on her behalf) shall not directly or indirectly by any means or for any reason intercept or access the Respondent’s email account(s).

[5] In paragraph 20 of that endorsement I adjourned the motion to November 24. I also directed the Applicant to serve and file her responding affidavit material on or before November 2, 2020 and a factum by November 18, 2020. I directed the Respondent to serve and file his reply affidavit and factum by November 16.

[6] The Applicant served and did not file an affidavit sworn October 20, 2020 which I received and reviewed on the hearing of the motion.

[7] The Applicant served and filed an affidavit ostensibly sworn November 2 but it was not signed. She filed it again with a signature. On November 16, the Applicant served and filed another version of the affidavit sworn November 2 with amendments that she underlined. She did not file a factum. On the morning of the motion, the Applicant served a draft order which I received and reviewed on the hearing of the motion.

[8] The Respondent served and filed his reply material and factum as directed as well as a draft order.

[9] Before hearing submissions, I reviewed what had been received. At my request, counsel for Mr. Lindsay sent by email to the Registrar a copy of the affidavit sworn October 20, 2020, a copy of the November 16 affidavit with underlining and a copy of Ms. Dixon’s draft order. I refer to all versions of the Applicant’s November affidavits as the November 16 affidavit.

[10] At the conclusion of submissions on November 24, 2020 I reserved decision. I allowed the Applicant the opportunity to provide to the Trial Co-ordinator citations for no more than three cases that she wanted me to consider for the proposition that the judge hearing a case involving disputed evidence should be the judge who decided admissibility of the evidence. I also gave the Respondent an opportunity to respond.

The Evidence

[11] The parties married on October 7, 2017. They separated on June 3, 2018 as a result of an incident in which the police were called and the Applicant was charged with assault and assault with a weapon. From June 3, 2018 to December 2, 2019, the Applicant was the subject of an Undertaking with a term that the Applicant not attend within 200 meters of the Respondent, his work, the home or places where he was known to frequent. On December 2, 2019, the Assistant Crown Attorney informed the Justice of the Ontario Court of Justice that, while it was the Crown’s view that there had always been a reasonable prospect of conviction, there was no longer a public interest in proceeding and the Crown withdrew the charge. Those events inform the Applicant’s opposition to this motion. In the existing family law proceeding the Applicant raised issues of malicious prosecution. As indicated in her evidence, in September 2020, she issued, but did not serve, an Application raising similar issues. She asserts that she needs the emails to prove her case for malicious prosecution.

[12] In an order dated January 30, 2020, Diamond J. granted the Respondent’s motion for temporary exclusive possession of the matrimonial home and ordered costs against the Applicant in the amount of $7500.

[13] In an order dated July 16, 2020 Hood J. dispensed with the Applicant’s consent to the sale of the matrimonial home and ordered the parties to make written submissions as to costs.

[14] In her submissions on July 14, 2020 before Hood J., the Applicant made reference to having “extensive documentation” of the Respondent’s correspondence with Mr. Codas. That caused the Respondent to make inquiries. He contacted his office tech specialist and Google Cloud Support. Google Cloud Support provided a detailed log of all emails forwarded to Gmail account fulldisclosurecommunications@gmail.com over the period of June 18, 2020 to July 17, 2020. According to the Respondent, Google Cloud Support cannot access emails further than 30 days without the involvement of the police or a court order. At the request of the Respondent, Google stopped the forwarding to that Gmail account as of July 17, 2020.

[15] The Google Cloud Support report indicates that in the period June 18, 2020 to July 17, 2020, over 1850 emails were forwarded to that Gmail account. Google Cloud Support identified a potential link between the Gmail account and an IP address of a Galaxy Note 3 cell phone.

[16] The Respondent analyzed the list of forwarded emails and identified over 1,200 emails as being privileged communications with his family law counsel, over 150 emails as being privileged communications with his criminal law clients and over 430 emails covered by other privacy rights.

[17] In her written submissions dated August 14, 2020 on costs, the Applicant included the following:

(i) at paragraph 8(b) to “an email to his counsel and forwarded to others”; (identified by the Respondent as dated June 11, 2020); (ii) at paragraph 8(h) to an email dated March 16, 2020 to his counsel noting in parenthesis: (Please note that Mr. Lindsay effectively waived solicitor-client privilege by forwarding such correspondence to various individuals in his circle.); (iii) at paragraph 8(i) to an email by Mr. Lindsay’s counsel to Mr. Lindsay; (identified by the Respondent as dated March 17, 2020); (iv) at paragraph 8(u) to an email to his counsel; (identified by the Respondent as dated February 27, 2020).

[18] After receiving the Applicant’s written costs submissions, the Respondent again contacted Google Cloud Support and obtained more information about forwarding practices.

[19] In his endorsement dated August 25, 2020 on costs, Hood J. noted the following:

. . . Despite being substantially over the ordered page limit I read all of it, except for the extracted communications between the respondent and his counsel, which the applicant had somehow obtained. Being privileged and there being no waiver of privilege I did not read this correspondence. . .

[20] The Applicant has sought leave of the Divisional Court to appeal the orders of Diamond J. and Hood J. She intends to rely on some of the emails.

[21] In her affidavit sworn October 20, 2020, the Applicant said the following:

1. The Applicant has had consensual access to the Respondent’s email account peter@lindsaylaw.ca which he uses as his personal and professional email account.
2. Due to the Applicant’s very serious experiences of, and claims against, the Respondent, including that of Malicious Prosecution and Defamation, the Applicant has been compelled to store (i.e. forward to a separate private email account, pursuant to the preservation of critical evidence) and invoke emails belonging to the Respondent. The matter of the Applicant’s claims for Malicious Prosecution and Defamation, have been put forth by the Applicant, since the time of her divorce Application. Additionally, due to the breadth of the circumstances of these claims, the Applicant has issued (but not yet served) a separate civil claim of Malicious Prosecution, Defamation, and Abuse of Process, against the Respondent.
3. Due to ongoing pertinent medical circumstances, including a current medical leave, the Applicant’s ability to effectively engage in legal matters, has been adversely impacted.
4. The Applicant’s earnest objective, regarding legal matters involving the Respondent, has always been the advancement of truth, fairness, and justice, while protecting her safety, and she has had no sinister intentions regarding the Respondent’s emails.
5. Given the above, the Applicant has never shared, published, or disseminated any emails belonging to the Respondent, except within the context of pertinent legal proceedings.
6. As the Applicant has already indicated in writing, the Respondent/his counsel, no family member of the Applicant, nor any device they possess nor have possessed, has ever had any connection to, nor involvement in, this matter of the Respondent’s emails/email account.
7. Any privileged emails, pertaining to the Respondent’s clients, have been periphery and any storage of such emails, as indicated by the Respondent’s Exhibits/Tabs, has been inadvertent, on the Applicant’s part.
8. Regarding emails involving correspondence between the Respondent and his counsel, to her knowledge, the Applicant has only stored, and has certainly only invoked in legal proceedings, such emails as have been socially forwarded by the Respondent to third parties - - i.e. emails which, thereby, do not meet the categorization of “privileged”.
9. The Applicant has been unable to personally identify the precise emails which have been read and stored by the Applicant, over the 30 day period, ending July 17, 2020. However, the Applicant, herein, defers to and accepts the provided Google printouts pertaining to conveying emails evidently forwarded to the private storage account of fulldisclosurecommunications@gmail.com .
10. The Applicant has not “destroyed” any of the Respondent’s emails.

[22] In her affidavit dated November 16, 2020, the Applicant has set out her evidence in these categories: Relationship/Personal History, Nefarious Motives, Criminal Proceeding, Respondent’s ongoing Malicious/Unethical Conduct, Surreptitious Audio Recording, Abuse of Power, Influence, and Process, Consensual Access to the Respondent’s Emails, Security of the Respondent’s Clients’ Electronic Information, Admissibility of Evidence, Pertinent Commentary Regarding Justice Kiteley’s Order, Medical Note from Doctor, Postponement of Submissions Regarding Leave to Appeal, Statement “Emails I May or May not Have”, Impecunity [sic] and Self-Representation, Other Pertinent Commentary, General Statements Regarding the Respondent’s Emails, The Respondent’s Claims.

[23] The following is taken from the November 16 affidavit:

65. a) I have had consensual access to the Respondent, Peter Lindsay’s email account peter@lindsaylaw.ca , which Mr. Lindsay uses as his personal and professional email account. b) Due to my very serious experiences of, and claims against Mr. Lindsay, including that of Malicious Prosecution and Defamation, I have been compelled to store (i.e. forward to a separate private email account, pursuant to the preservation of critical evidence) and invoke, for the purposes of legal proceedings, emails belonging to Mr. Lindsay. The matter of the Applicant’s claims for Malicious Prosecution and Defamation, have been put forth by me, since the initiation of my divorce application. Additionally, due to the breadth of the circumstances of these claims, I have issued (but not yet served) a separate civil claim of Malicious Prosecution, Defamation, and Abuse of Process, against Mr. Lindsay. c) My earnest objective, regarding legal matters involving the Respondent, has always been the advancement of truth, fairness, and justice, while protecting my safety and vulnerability, and I have had no sinister intentions regarding the Respondent’s emails. d) Given the above, I have never shared, published, or disseminated any emails belonging to the Respondent, except within the context of pertinent legal proceedings. e) As I have already indicated in writing, to the Respondent/his counsel, no family member of mine, nor any device they possess nor have possessed, has ever had any connection to, nor involvement in, this matter of Mr. Lindsay’s emails/email account. f) Any privileged emails, pertaining to the Respondent’s clients, have been periphery and any such emails which may have been inadvertently stored by me, would be destroyed. g) Regarding emails involving correspondence between Mr. Lindsay and his counsel, to my knowledge, I have only stored and certainly only invoked in legal proceedings, such emails as have been socially forwarded by the Respondent to third parties – i.e. emails which, thereby, do not meet the categorization of “privileged”.

Analysis

[24] Contrary to paragraph 16 of the endorsement dated October 9, 2020, the Applicant did not identify by number on the table of emails attached to the order those Category A or Category B emails of which she had possession, those which she had had in her possession but had deleted or destroyed, and those which she had shared electronically or otherwise.

[25] Based on the submissions she made in court on July 14, 2020, the written submissions dated August 14, 2020, her affidavit sworn October 20, 2020 and her affidavit dated November 16, 2020, the Applicant has explicitly or implicitly admitted the following:

(a) she no longer refers to emails that she “may or may not have”. She admits that she has emails; (b) in paragraph 9 of her affidavit sworn October 20, 2020, the Applicant “deferred to and accepted” the 1850 emails listed in the search by Google Cloud Support as having been read and stored by her during the period June 16, 2020 to July 18, 2020; (c) she deliberately accessed the Respondent’s emails after the separation and on multiple occasions in the 30 day period ending July 17, 2020 for at least 22.93 hours reading and forwarding his emails; (d) she deliberately looked at, forwarded and, as indicated in her submissions in court on July 14, 2020 and in her written submissions dated August 14, 2020 in connection with costs, she used for family law litigation purposes some of those emails; (e) she has deliberately stored copies of the emails including communications between the clients of the Respondent and the Respondent, between the Respondent and his lawyer, and others; (f) she intends to use some of the stored emails in connection with the existing family law application, the second application alleging malicious prosecution, and in motions before the Divisional Court; (g) she acknowledges she has emails between the Respondent and his clients although says she obtained them inadvertently and, in any event, has no intention to use them; (h) she acknowledges she has emails between the Respondent and his family law lawyer although she takes the position that emails that would otherwise be privileged are not because a third party was a recipient; (i) all of the Applicant’s access to the Respondent’s emails occurred after separation on June 3, 2018.

[26] The Applicant has not said how she accessed the emails. She asserts that it was “consensual” from which I understand her to say that the Respondent consented to her accessing his email account on multiple days for extensive periods of time after separation. She also insists that “no family member” had any connection to or involvement with accessing the emails, from which I understand that she is denying the Respondent’s theory that she had accessed his emails by using a Galaxy Note 3 cell phone that he had given to the Applicant’s nephew and the information from Google Cloud Support that an IP address of a Galaxy Note 3 was associated with the retrieval of the emails. She insists that she did not “hack” into the Respondent’s email but she does not say how she overcame his 2-step verification for his email account.

[27] The evidence of the Respondent is that he did not consent to the Applicant accessing his email account; that he did not provide the Applicant with the password to his email account; that the Applicant was not an addressee on any of the identified emails; that the Respondent did not provide to the Applicant copies of the email correspondence; and that the Respondent did not waive privilege over any of his email correspondence with his counsel.

[28] The Applicant has many criticisms of the Respondent. The Applicant believes her actions are appropriate. She insists that she did not obtain the emails illegally. She does not acknowledge any wrongful conduct. She does not demonstrate contrition. The Applicant justifies her actions on the basis that she is seeking “justice” for what she sees as grave injustices having been visited on her as a result of the Respondent’s actions. In my view, her protestations that she seeks to promote the advancement of “truth, fairness and justice” are an ill-disguised attempt to retaliate.

[29] Given the extensive admissions by the Applicant listed in paragraph 25 and the egregious conduct they demonstrate, I do not accept the credibility and reliability of her evidence, particularly on the issue of consent. I do accept and rely on the evidence of the Respondent.

[30] The Respondent frames his submissions in the context that the Applicant “stole” the emails and he refers to sections of the Criminal Code [^1]. In this motion it would not be appropriate to make a determination that the Applicant committed any criminal offence. On all of the evidence, and in the absence of evidence from her as to how she did access the account and with the reliable and unchallenged or accepted information from Google Cloud Support, I am led to the conclusion that the Applicant accessed the Respondent’s email account, searched, retrieved and stored emails belonging to the Respondent, that she did so since separation deliberately and surreptitiously, and without the Respondent’s consent. In that context, I refer to all of the emails listed by Google Cloud Support as “stolen emails”.

[31] The list of 1850 emails from Google Cloud Support are for the period June 18, 2020 to July 17, 2020. But it is clear from her own submissions dated August 14, 2020, that the Applicant has emails for an extensive period preceding June 18 and, as indicated by the Respondent, as far back as March 27, 2019, which was 9 months after the separation on June 3, 2018.

Category A emails

[32] Solicitor and client privilege can only be claimed based on a document by document review. Each document must meet these criteria: a communication between a solicitor and the client which entails seeking or giving legal advice, and which is intended to be confidential. [^2]

[33] The Applicant concedes that the emails between the Respondent and his clients are protected by solicitor and client privilege. As a result, it is not necessary for me to review each communication.

[34] In paragraph 1 of her draft order the Applicant indicated that she would delete “any privileged emails concerning any of the Respondent’s clients, which she may have in the email account fulldisclosurecommunications@gmail.com.” In paragraph 2 the Applicant provided that she would “not disseminate nor disclose any content of any privileged email communication concerning any of the Respondent’s clients.” On that basis, the order below in respect of the Category A emails is, effectively, not challenged.

[35] The Applicant also deposed that it was “inadvertent” on her part that she stored emails in that category. I do not accept that evidence. She had to read emails in that category in order to acknowledge that they contain communications between him and his clients. The Google Cloud Support list indicates that she spent hours accessing the Respondent’s email account. The only inference to be drawn is that during that extensive 30 day period of time, she read emails before forwarding them. Her assertion that storing the emails in that category was “inadvertent” is not reasonable or credible.

Category B emails

[36] The Applicant is knowledgeable about the principle of solicitor client privilege between the Respondent and his family law lawyers. In her written submissions dated August 14, 2020 she referred to an email dated March 16, 2020 and noted in parenthesis “Mr. Lindsay effectively waived solicitor-client privilege by forwarding such correspondence to various individuals in his circle”. The Applicant deliberately accessed such emails because she believes she will be able to rely on them in her pursuit of her claims for malicious prosecution.

[37] Solicitor client privilege protects communication between a solicitor and his or her client, recognizing that:

the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it . . The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice. [^3]

[38] Canadian authorities recognize two forms of solicitor-client privilege. The first, legal advice privilege is both a substantive and procedural right of a client to maintain as confidential communications and advice passing between the client and their solicitor. The second, litigation privilege, or “work product privilege” protects from production a communication made or a document created for the dominant purpose of assisting the client in litigation, actual or contemplated. [^4]

[39] It is not necessary for me to review the emails that the Respondent has included in Category B because the Applicant has not challenged his evidence on that issue. I accept and rely on the evidence of the Respondent that an estimated 1200 emails constitute communications between him and his family law counsel and that they are privileged communications.

Category C documents

[40] In his initial affidavit sworn September 13, 2020, the Respondent had sorted the emails into the following categories: (1) solicitor client communications between him and his lawyers; (2) “house” referring to the former matrimonial home, some of which are protected by solicitor client privilege but some are not; (3) communications between him and his own clients that he asserted were covered by solicitor client privilege of those clients; (4) “stuff about my office”; (5) emails involving his girlfriend; and (6) “personal family stuff” including emails with his children. In my endorsement dated October 8, I directed the Respondent to re-categorize using three labels: solicitor client privilege of his clients; his solicitor client privilege; and everything else.

[41] Category C is contains everything else and, in particular, those listed as (4), (5) and (6).

[42] It is not necessary for me to review the emails that the Respondent has included in Category C because the Applicant has not challenged his evidence as to the content of those emails including the intimate nature of some of them. I accept and rely on the evidence of the Respondent that, while these emails are not protected by a privilege, they constitute communications that are confidential, personal and private and which he did not intend to share except with the addressee. I find that they are protected by privacy rights in civil proceedings. As Quigley J. held in Autosurvey Inc. v. Prevost [^5] it “should be a self-evident principle” that individuals have the right

. . . to be free and secure from encroachment upon their reasonable expectations of confidentiality and privacy in a free and democratic society, whether at the instance of government, or at the instance of non-governmental parties or a litigation adversary. . .

Remedy

[43] With respect to the emails protected by the privilege of the Respondent’s clients, the remedy is not controversial. By accepting the Google Cloud Support list, she has conceded that she has them although she asserts that storing them was inadvertent. In any event, the Applicant does not intend to rely on them and her draft order provides that she will delete them. I have adopted the Respondent’s draft order in that respect.

[44] With respect to the emails protected by the Respondent’s solicitor and client privilege and in the “other” category, the Applicant insists on being able to retain and use them.

[45] The Applicant asserts that whether the communications are protected by the Respondent’s solicitor and client privilege or are confidential, personal and private, that this court ought not to decide whether she is permitted to use them. She takes the position that the admissibility of any or all of the emails should be determined by the judge in the proceeding in which she offers them as evidence. That would include the proceedings in the Divisional Court [^6] and before the court when her claims based on malicious prosecution are heard. She insists that the content of the emails includes evidence that is incriminating of the Respondent, that will assist her in her claims for damages for malicious prosecution and defamation, and, in that analysis, the public interest in disclosure outweighs the prejudicial effect to Mr. Lindsay, or, in her words “its probative value outweighs the matter of its sourcing”.

[46] In his factum and during the hearing of the motion on November 24, 2020, the Respondent took the position that none of the emails were admissible and this court should so order, rather than leaving it to any judge before whom the Applicant asks that they be found admissible.

[47] At the conclusion of the hearing on November 24, 2020 I permitted the Applicant to send links to no more than three decisions and I allowed the Respondent an opportunity to respond. The Applicant relies on three decisions to which reference is made below.

[48] In Eizenshtein v. Eizenshtein [^7] the wife brought a motion to admit as evidence emails between her husband and his lawyer. The husband lived with a woman who enjoyed full use of the husband’s personal computer. When the husband and his girlfriend broke up, the girlfriend provided the emails to the wife, who attached them to an affidavit. Wildman J. concluded that the emails were privileged and it did not matter whether they were obtained by the girlfriend innocently (as she claimed) or stolen (as Mr. Eizenshtein claimed). Wildman J. found that the emails were protected by solicitor and client privilege and did not lose that protection merely because they were seen by a third party, including asking an intimate friend or family member for assistance. [^8]

[49] Wildman J. applied a three-part test to determine the admissibility of surreptitiously obtained correspondence: threshold relevance; exceptions to privilege including the means of acquisition; and ultimate relevance, namely whether the probative value of the evidence outweighs the prejudicial effect of admitting it.

[50] In Pottruff v. Don Berry Holdings Inc. [^9] the plaintiff worked for the defendant and the plaintiff’s husband, a computer technician, was employed to assist with the computer of the defendant’s consultant. While repairing the computer, the husband saw email correspondence from the consultant that summarized advice from counsel (which included reference to the plaintiff). The husband took a copy and gave it to the plaintiff. The defendant brought a motion for the return of the documents and a declaration that they could not be used in the proceedings because of solicitor and client privilege. Arrell J. held that “the administration of justice would be brought into disrepute if those who wrongfully and intentionally obtained documents could then use them to their advantage in civil law suits”. Furthermore, he held that it was “a deliberate and planned act to remove a document from a person’s computer knowing full well it was confidential.”

[51] In Grassie v. Grassie [^10] the wife brought a motion to strike and remove references to the husband’s affidavit to private emails between the wife and other persons, including her former lawyer, her father and others. The husband had obtained the correspondence by accessing the wife’s personal email account following their separation and surreptitiously reading her emails without her knowledge of consent. The wife’s email account was password protected but the husband knew it because he had helped her to set up the email account. Trousdale J. applied the three part test and held that the wife

had a reasonable expectation that her private email would be confidential and not subject to prying eyes, including those of her estranged husband. This is particularly so, when all of the emails in question were written or received by [the wife] after the separation of the parties.

[52] Trousdale J. also held that on the issue of ultimate relevance, the probative value of the emails were minimal and that “the prejudicial effect of having [the wife’s] private and confidential emails available to any member of the public who wishes to access the court file, outweighs the probative value of the evidence”. [^11]

[53] In Golchoobian v. Vaghei [^12] the husband and wife had separated but continued to work at their jointly-owned clinic. The wife observed the husband on the clinic’s security cameras using the clinic’s computer to read his wife’s personal email, including between the wife and her lawyer. The husband attached an email sent to the wife by her counsel as an exhibit to his affidavit. He also made complaints to the law society about the wife’s counsel, and included copies of the lawyer’s accounts and the list of services the lawyer had provided. I held that the husband’s conduct in deliberately accessing the wife’s emails

threatened what the Supreme Court of Canada described as a fundamental aspect of the Canadian legal system. The Respondent’s conduct must be met with significant sanctions.

[54] The Applicant relies on three decisions. The first is Mathews v. Mathews [^13] in which, during a trial, the husband sought to introduce into evidence a letter contained on a birthday card sent by the wife to her friend shortly after the wife allegedly wrongfully removed the children from Australia. He also relied on entries in a journal the wife kept and which the husband found and copied. The trial judge found that the documents were relevant to a central issue. The trial judge also found that the husband had violated the wife’s privacy but his conduct was found to be “a single act done in the throes of what was from his point of view at least, an inexplicable breakdown of his marriage”. He held that the material had significant probative value.

[55] The second is the decision in McDermott v. McDermott [^14] in which, during a trial, the husband brought a motion for production of documents over which the wife claimed solicitor and client privilege. After the trial commenced, the husband learned of email correspondence from the wife to her sister where she disclosed a plan to be undertaken by her lawyer to delay the trial by losing an application and then launching an appeal. The trial judge found that the emails were not protected by privilege because they met the future crimes exception. He found the emails to have significant probative value.

[56] The third is Chand v. Chand [^15] where the trial judge found that four specific emails between the husband and his sister, which the wife had taken without his authorization and which did not engage solicitor and client privilege, were relevant to a central issue. The wife had attempted to obtain copies of the e-mails through the legitimate process of questioning but the husband had denied they existed and had lied under oath. The Court of Appeal upheld the admissibility of those emails and the reliance by the trial judge.

[57] In all of the cases referred to above the decision as to admissibility of the evidence was made by the trial judge or motion judge. That is the position advanced by the Applicant.

[58] Those cases are not determinative for these reasons. First, there is no pending motion, hearing or trial before me in which the Applicant asks that the emails be found to be admissible. The Respondent has brought this motion anticipating that the Applicant will attempt to rely on them in several hearings or proceedings with a view to preventing future reliance.

[59] Second, if I were to consider admissibility of 1850 emails, or approximately 1700 by subtracting the communications covered by the privilege of the Respondent’s clients conceded by the Applicant, a critical issue in the analysis of admissibility is the method by which the party obtained them. None of the cases referred to above involve non-consensual, surreptitious accessing of hundreds, indeed thousands of emails, over a prolonged period of time after separation with the intention of using them in various legal proceedings for retaliation. In this case, all of the emails were obtained in the same improper and egregious way.

[60] Third, the principal relief sought is a declaration pursuant to s. 97 of the Courts of Justice Act [^16], namely that the Applicant deliberately accessed the Respondent’s personal and private email account, and deliberately looked at, forwarded, used for family law litigation purposes and retained copies of communications. For that reason, the court must consider whether the conduct of the Applicant is such that it attracts a remedy beyond the question of admissibility on a document by document basis in multiple different legal settings.

[61] In my view, it is essential that the court grant the declaration sought for these reasons. First, as described in paragraph 25 above, the conduct of the Applicant in accessing, reviewing and storing the privileged and confidential communications of the Respondent must be denounced in the clearest terms. Second, it is contrary to the primary objective referred to in Family Law Rules [^17] 2(2) and 2(3)(c) and (d) to expend judicial resources in multiple proceedings endeavouring to determine admissibility of emails, particularly where the circumstances of their acquisition is admitted and egregious. Indeed, it is consistent with the primary objective that the court deal with the issue in a manner that is appropriate to its importance and complexity by denouncing the conduct in a declaration and not permitting the Applicant to seek a ruling as to admissibility. In Golchoobian, I held that there had to be consequences of the deliberate conduct of the litigant. If the court allowed the Applicant in this case to seek to admit some or all of the Category B and Category C documents, she would, in effect, be rewarded for her behaviour. The consequence appropriate in this case is to impose whatever sanctions are available to prevent her from attempting to do so.

Draft Orders

[62] For those reasons I reject the Applicant’s draft order.

[63] In his draft order, the Respondent asks for a declaratory order which I have found appropriate. He asks for an order that the Applicant be required to serve but not file an affidavit that provides full particulars of what she acquired and what she has done with them. That was similar to the order I made in the endorsement dated October 9. In paragraph 15 of that endorsement, I observed that directing her to file the affidavit would create the opportunity for her to place in, in effect, a public forum, the particulars of emails that the court must not allow.

[64] The Applicant also asks for an order that the Applicant return the Galaxy Note 3 device referenced in the Respondent’s affidavits. The information provided by Google Cloud Support creates a strong inference that the Applicant had possession of that device. However, I am not satisfied on the record that she has it in her possession. The IP address associated with that device has been removed from any contact with the Respondent’s email. I see no reason to make that order.

[65] As in Golchoobian, the Respondent asks that the Applicant sign an Undertaking to the court that she will never intercept or access the Respondent’s emails and that she will comply promptly with the Family Law Rules [^18], the Rules of Civil Procedure [^19], and any orders or judgments made by the Court. I consider the first part of the undertaking appropriate but not the second part.

[66] The Respondent also asks that the order provide that the Applicant pay his costs of the motion, subject to submissions as to the amount. I agree that the Applicant is required to pay costs and that she ought not to be given the opportunity to ask for a different outcome as to costs. The Respondent was successful. The Applicant’s conduct demonstrated bad faith. Pursuant to Family Law Rule 24(8) [^20], she should be required to pay full indemnity costs.

[67] As indicated above, the Applicant did serve but not file her affidavit sworn October 20, 2020. I received it at the outset of the hearing of the motion and have quoted the contents above. The contents of that affidavit demonstrate how egregious her conduct was but do not disclose the contents of any of the emails. The Applicant also served an affidavit dated November 2, a signed version of that affidavit, and an amended affidavit dated November 16. She did not file any of them in the court file. She sent them to the Trial Co-ordinator who sent them to me. All of those affidavits should be filed electronically through Intake because they indicate the record that was before me on the motion but do not disclose the contents of any of the emails.

[68] In his submissions, counsel for the Respondent asked that an additional paragraph be added to the order, namely that the Application(s) and motions in the Divisional Court filed by the Applicant be struck if she fails to comply with this order. That paragraph was not included in the Respondent’s notice of motion, factum or draft order. Absent proper notice to the Applicant I am not prepared to add it. The Respondent has remedies including Family Law Rule 1(8) [^21].

Conclusion:

[69] THIS COURT DECLARES THAT:

The Applicant, Jennifer Dixon (“Dixon”) deliberately accessed the personal and private email account of the Respondent Peter Lindsay (“Lindsay”) and deliberately looked at, forwarded, used for family law litigation purposes, and retained copies of Lindsay’s private and confidential communications (“stolen emails”) including communications that are protected by solicitor-client privilege.

THIS COURT ORDERS THAT:

[70] By March 23, 2021, Dixon shall serve but not file an affidavit, which includes the following information:

(a) Full particulars of how, when, and for what duration Dixon obtained access to Lindsay’s personal and private email account(s) and/or copies of Lindsay’s private email communications (including but not limited to those referenced in her Costs Submissions, filed on August 14, 2020); (b) Copies of every private email communication (including but not limited to the stolen emails) that Dixon has in her possession, which were not sent or copied to Dixon by Lindsay, regardless of how she obtained them; (c) A full listing of every private email communication (including but not limited to the stolen emails) that Jennifer or any individual(s) on her behalf forwarded to fulldisclosurecommunications@gmail.com ; (d) Full particulars regarding fulldisclosurecommunications@gmail.com , including when Dixon opened this account and a complete listing of all email communications forwarded or sent to fulldisclosurecommunications@gmail.com from peter@lindsaylaw.ca and a full listing of any such emails forwarded or sent by fulldisclosurecommunications@gmail.com to any other accounts; and (e) Full particulars of every individual with whom Dixon shared Lindsay’s private email communications (including but not limited to the stolen emails), whether in hard copy, electronically, or orally.

[71] By March 23, 2021, Dixon shall return all hard copies of Lindsay’s private email communications (including but not limited to the stolen emails) that she has in her possession and/or access to, directly or indirectly, without retaining or making any further copies (hard copy, electronic or otherwise).

[72] By March 23, 2021, Dixon shall delete and destroy all electronic copies of Lindsay’s private email communications (including but not limited to the stolen emails) that she has in her possession on any devices or accounts, and/or access to, directly or indirectly, without retaining or making any further copies (hard copy, electronic or otherwise).

[73] By March 23, 2021, Dixon shall provide proof that she has returned and/or destroyed all hard copies and electronic copies of Lindsay’s private email communications (including but not limited to the stolen emails), as ordered pursuant to paragraphs 71 and 72 above, including but not limited to a sworn Affidavit sent to Lindsay’s solicitor confirming that she complied with the delete and destroy order.

[74] By March 23, 2021, Dixon shall instruct in writing any individual with whom she shared Lindsay’s private email communications (including but not limited to the stolen emails) as disclosed in accordance with paragraph 70(e) above to return, delete and destroy all hard copies and electronic copies of said communications on any devices or accounts, and provide proof to Lindsay’s solicitor including a sworn affidavit by Dixon, that they have directed and destroyed the stolen emails. Dixon shall attach to that affidavit a copy of the communications with these individuals together with any responses.

[75] By March 23, 2021, Dixon shall serve and file a sworn Undertaking to the Court on the following terms:

That she undertakes never to directly or indirectly by any means intercept or access Lindsay’s personal email account(s) or make copies of Lindsay’s personal email communications again.

[76] Dixon is prohibited from using or referring to any of Lindsay’s private email communications (including but not limited to the stolen emails), which shall include the contents of the communications and/or any attachments to said communications, in this proceeding or any other court proceeding.

[77] With respect to costs of this motion including Hood J., dated September 15, 2020, and the motions heard on October 6 and November 24, 2020, the Applicant shall pay costs on a full indemnity scale, provided that the parties shall make written submissions as follows:

(a) by March 17, 2021 the Respondent not more than 3 pages, plus bills of costs, offers to settle, if any; (b) by March 30, 2021 the Applicant not more than 3 pages, plus offers to settle, if any.

[78] Counsel for the Respondent shall deposit in the electronic court file the following documents: the Applicant’s affidavit sworn October 20, 2020; the Applicant’s affidavits dated November 2, 2020 and the amended affidavit dated November 16, 2020, her draft order and the form 17 confirmation forms submitted by her and by the Respondent dated November 25, 2020 in which additional citations were provided.

[79] This order takes effect immediately without the formal order being signed and entered.

[80] Counsel for the Respondent may forward an unapproved draft order incorporating paragraphs 69 to 79 to my attention for signing.

Kiteley J. Date: February 23, 2021

Footnotes

[^1]: Pottruff v. Don Berry Holdings Inc., 2012 ONSC 311 at para. 14. [^2]: Solosky v. The Queen, [1980] 1 S.C.R. 821 at 837. [^3]: Blank v. Canada (Department of Justice), 2006 SCC 39 at para. 26. [^4]: Autosurvey Inc. v. Prevost; [2005] O.J. No. 4291 at para. 50-53. [^5]: Autosurvey Inc. v. Prevost at para. 48. [^6]: Dixon v. Lindsay, 2020 ONSC 6456. [^7]: Eizenshtein v. Eizenshtein; [2008] O.J. No. 2600. [^8]: Eizenshtein v. Eizenshtein at paras. 37-40. [^9]: Pottruff v. Don Berry Holdings Inc., 2012 ONSC 311 at paras. 13 and 14. [^10]: Grassie v. Grassie, 2013 ONSC 1198 at para. 199. [^11]: Grassie v. Grassie, 2013 ONSC 1198 at paras. 201-204. [^12]: Golchoobian v. Vaghei, 2015 ONSC 1840 at paras. 13 and 18. [^13]: Mathews v. Mathews, 2007 BCSC 1825 at para. 55. [^14]: McDermott v. McDermott, 2013 BCSC 534. [^15]: Chand v. Chand, 2015 ONCA 228 upholding 2013 ONSC 4343. [^16]: Courts of Justice Act, R.S.O. 1990, c. C.43. [^17]: Family Law Rules, O. Reg. 114/99. [^18]: Family Law Rules, O. Reg. 114/99. [^19]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^20]: Family Law Rules, O. Reg. 114/99, Rule 24(8). [^21]: Family Law Rules, O. Reg. 114/99, Rule 1(8).