Sobeski v. Mamo et al.
[Indexed as: Sobeski v. Mamo]
112 O.R. (3d) 630
2012 ONCA 560
Court of Appeal for Ontario,
Winkler C.J.O., R.P. Armstrong and LaForme JJ.A.
August 28, 2012
Civil procedure -- Deemed undertaking -- Defendant acting for wife in matrimonial dispute -- Defendant seeking to use documents provided to him by wife in matrimonial proceedings (other than those to which solicitor-client privilege attached) to defend defamation action brought against him by husband -- Motion judge dismissing defendant's motion under rule 30.1.01(8) for order that deemed undertaking did not apply to those documents -- Defendant's appeal allowed -- Deemed undertaking not applying as defendant did not obtain documents under Rules 30, 31, 32, 33 or 35 -- Motion judge also erring in ordering defendant to return documents to wife as that remedy was not requested by either party -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30, 30.1.01, 32, 33, 35.
The defendant was retained to act for the wife in a matrimonial dispute which was ultimately settled. He sought to use documents provided to him by the wife in the matrimonial proceedings (other than those to which solicitor-client privilege attached) to defend a defamation action brought against him by the husband. He moved for an order under rule 30.1.01(8) of the Rules of Civil Procedure that the deemed undertaking did not apply to the documents. The motion judge dismissed the motion and ordered that the defendant return the documents to the wife. The defendant appealed.
Held, the appeal should be allowed.
The deemed undertaking did not apply to the documents in question as the defendant did not obtain them under Rule 30, Rule 31, Rule 32, Rule 33 or Rule 35 of the Rules of Civil Procedure. Moreover, the motion judge erred in ordering the defendant to return the documents to the wife as that remedy was not requested by either party to the dispute.
APPEAL by the defendant from the order of Perell J. (2011), 105 O.R. (3d) 532, [2011] O.J. No. 1610, 2011 ONSC 2153 (S.C.J.) dismissing the motion for an order that the deemed undertaking did not apply to certain documents.
Cases referred to
460635 Ontario Ltd. v. 1002953, 1999 789 (ON CA), [1999] O.J. No. 4071, 127 O.A.C. 48, 92 A.C.W.S. (3d) 387 (C.A.); Clarkson v. Lukovich, 1988 8776 (ON CA), [1988] O.J. No. 902, 14 R.F.L. (3d) 436, 10 A.C.W.S. (3d) 297 (C.A.); Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906, 125 D.L.R. (4th) 613, 83 O.A.C. 38, 12 C.C.E.L. (2d) 105, 37 C.P.C. (3d) 181, 56 A.C.W.S. (3d) 267 (C.A.); Juman v. Doucette, [2008] 1 S.C.R. 157, [2008] S.C.J. No. 8, 2008 SCC 8, 75 B.C.L.R. (4th) 1, [2008] 4 W.W.R. 1, 50 C.P.C. (6th) 207, EYB 2008-130634, J.E. 2008-501, 290 D.L.R. (4th) 193, 164 A.C.W.S. (3d) 765, 372 N.R. 95; Kalkinis (Litigation Guardian of) v. Allstate Insurance Co. of Canada (1998), 1998 6879 (ON CA), 41 O.R. (3d) 528, [1998] O.J. No. 4466, 117 O.A.C. 193, 83 A.C.W.S. (3d) 480 (C.A.); Kitchenham v. AXA Insurance Canada (2008), 94 O.R. (3d) 276, [2008] O.J. No. 5413, 2008 ONCA 877, 306 D.L.R. (4th) 68, 68 C.P.C. (6th) 69, 73 M.V.R. (5th) 4, [2009] I.L.R. I-4783, 244 O.A.C. 222, 69 C.C.L.I. (4th) 51, 173 A.C.W.S. (3d) 80; Prudential Assurance Co. v. Fountain Page Ltd., [1991] 1 W.L.R. 756, [1991] 3 All E.R. 878 (Q.B.); Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74, [2002] O.J. No. 1365, 157 O.A.C. 203, 22 B.L.R. (3d) 274, 49 R.P.R. (3d) 227, 113 A.C.W.S. (3d) 68 (C.A.)
Rules and regulations referred to
Family Law Rules, O. Reg. 114/99, Rules 19 [as am.], 20 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30, 30.01, 30.1.01(1), (a), (2), (3), (5), (6), (8), 30.10, 31, 32, 33, 35
J. Brian Casey and Paul Hughes, for appellant Alfred Mamo. Mark M. Orkin, Q.C., and Robert G. Schipper, for respondent Nynna Ionson. Brian G. Shiller, for respondent Raymond Sobeski.
The judgment of the court was delivered by
R.P. ARMSTRONG J.A.: --
Introduction
[1] Nynna Sobeski, also known as Nynna Ionson, retained Alfred Mamo, a family law lawyer, to act for her in respect of matrimonial proceedings with her husband, Raymond Sobeski. Ms. Sobeski provided numerous documents to her lawyer in connection with the proceedings. The matrimonial proceedings were settled prior to trial. Mr. Mamo now seeks to use Ms. Sobeski's documents, which he still has in his possession, in defence of this defamation action brought against him by Mr. Sobeski.
[2] Mr. Mamo moved for an order pursuant to rule 30.1.01(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 that the deemed undertaking does not apply in respect of Ms. Sobeski's documents. Perell J. of the Superior Court of Justice dismissed the motion and ordered that Mr. Mamo return all of Ms. Sobeski's documents to her. Mr. Mamo now appeals to this court. Mr. Sobeski did not take a position on the motion or in this appeal.
Background
[3] Nynna Sobeski and Raymond Sobeski began a romantic conjugal relationship in December 1994. They were married in December 1998. After the marriage, the relationship continued as before and they continued to live apart.
[4] On January 4, 2004, Mr. Sobeski obtained a divorce judgment, which was not defended by Ms. Sobeski. Ms. Sobeski subsequently alleged that she was duped into not defending the divorce petition and that Mr. Sobeski had concealed from her the fact that he had won a $30 million lottery prize.
[5] Ms. Sobeski retained Mr. Mamo to set aside the divorce decree and to pursue a claim for a share of the lottery prize as a part of the equalization of the matrimonial property.
[6] Mr. Sobeski's defence was that there was no genuine marital relationship. In response to his defence, Ms. Sobeski provided her lawyer with a multitude of documents, which included correspondence with her husband.
[7] The case attracted a certain amount of media interest. In December 2005, Mr. Mamo was interviewed by a Globe and Mail reporter. In a Globe and Mail story, which followed, Mr. Mamo is reported to have said:
There are two versions of what happened here. By Wednesday, people will understand that Nynna's is the accurate one. And they'll see that his is a perjured account.
[8] On March 13, 2006, Mr. Sobeski commenced this action against Mr. Mamo, the publisher of the Globe and Mail, the Globe and Mail reporter and the editor-in-chief of the Globe and Mail for defamation. In defence, Mr. Mamo pleaded fair comment and justification.
[9] From May 2006 to December 2008, the defamation action was dormant while the matrimonial case moved ahead. The matrimonial case settled before trial in January 2009.
[10] Subsequent to the settlement, there is some evidence that Mr. and Ms. Sobeski resumed their personal relationship. Ms. Sobeski then moved to have Mr. Mamo's legal accounts assessed. Also, Mr. Sobeski began to move his defamation action forward.
[11] In his defence, Mr. Mamo sought to use many of the documents that Ms. Sobeski had given to him during the matrimonial litigation. Counsel for Mr. Mamo requested, through counsel for Ms. Sobeski, a waiver of solicitor/client privilege and the deemed undertaking in respect of the aforesaid documents. The solicitor for Ms. Sobeski was instructed to refuse the request.
[12] Counsel for Mr. Mamo then moved in motions court for relief from the deemed undertaking rule. He did not seek waiver of solicitor/client privilege because all of the documents in issue had been disclosed to Mr. Sobeski in the matrimonial proceedings, and therefore privilege did not apply.
[13] The documents in issue on the motion are described as follows: -- Affidavit of Divorce -- Amended Answer -- Affidavit of Nynna Sobeski and two exhibit books -- 10 document briefs -- 119 CDs of recorded conversations -- Applicant's Records Vol. I and II -- Respondent's Record -- Transcript of Ms. Ionson's questioning -- Request to Admit, 2 volumes -- Offers to Settle -- Orders -- Motion to Set Aside Divorce -- Medical Records -- Transcripts of Mr. Sobeski's questioning, 3 volumes -- Exhibits to Mr. Sobeski's questioning -- Exhibits to Ms. Sobeski's questioning
[14] The motion judge concluded that some of the documents in issue were not covered by the deemed undertaking. These included documents that had been filed in court and are exempt under rule 30.1.01(5) as well as documents used for the purpose of impeaching a witness under rule 30.1.01(6). The motion judge also noted that the deemed undertaking only applied to documents obtained under Rules 30, 31, 32, 33 and 35 and that some of the documents were obtained outside of those rules. The motion judge did not provide details of what documents fell outside that category. As will be seen from my analysis below, I am of the view that none of the documents in issue were obtained by Mr. Mamo under Rules 30, 31, 32, 33 and 35.
[15] The motion judge observed that although the deemed undertaking was being asserted in an unusual way, some of the documents in issue were subject to the rule. He concluded, at para. 33 of his reasons [(2011), 2011 ONSC 2153, 105 O.R. (3d) 532, [2011] O.J. No. 1610 (S.C.J.)]:
The normal situation envisioned by the rule is that the lawyer's undertaking would be extended to documents and information disclosed by the opposing party, namely, Mr. Sobeski. In this case, the deemed undertaking is being asserted for the benefit of Mr. Mamo's own client. Despite the oddity, in my opinion, the deemed undertaking applies because it is being asserted by a person for whom the rule was designed to offer protection.
[16] Having determined that the deemed undertaking rule applied to some of the documents in issue, the motion judge turned his mind to whether Mr. Mamo should be relieved from the undertaking. He cited the judgment of Binnie J. in Juman v. Doucette, [2008] 1 S.C.R. 157, [2008] S.C.J. No. 8, 2008 SCC 8 to the effect that relief from the "implied" undertaking will only be granted in exceptional circumstances. [^1] The onus is on the applicant "to demonstrate to the court . . . the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation". Ibid., at para. 32.
[17] The motion judge concluded that he would dismiss the request for relief from the deemed undertaking for three reasons. First, the deemed undertaking exists to protect Ms. Sobeski's privacy. Her marital affairs fall within such protection. Second, Mr. Mamo has not satisfied the court that he cannot make out his defence without the documents in issue. He observed that some of the documents are not covered by the undertaking. There are other means available to him to make his case such as the cross-examination of Mr. Sobeski at trial. He could also call Ms. Sobeski as a witness. Third, Mr. Mamo's status as a lawyer is important and "relieving him from his deemed undertaking would not totally release him from his professional fiduciary duties to a former client".
[18] Having concluded that Mr. Mamo was not entitled to be relieved from the deemed undertaking, the motion judge acknowledged, at para. 50 of his reasons, that this created a dilemma for Mr. Mamo:
Thus, Mr. Mamo confronts the apparent dilemma that he must honour the deemed undertaking, but in his affidavit of documents, he must disclose documents in his "possession, control, or power" and he must also disclose documents that were "formerly in his possession, control, or power".
[19] The motion judge then proposed what he described as an "escape route" for Mr. Mamo, at para. 54 of his reasons:
The escape route for Mr. Mamo is for him to return Ms. Ionson's documents and property to her. While he must disclose her documents, he cannot and he need not produce them for Mr. Sobeski. The ultimate result is that in his affidavit of documents, Mr. Mamo should: (1) disclose and produce for inspection, the relevant documents that are not covered by the deemed undertaking; and (2) disclose but not produce for inspection the documents that have been returned to Ms. Ionson, which are the documents covered by the deemed undertaking. Then, either party may, as they may be advised, bring a motion under rule 30.10 for an order for production from a non-party with leave. Either party may call Ms. Ionson as a witness at the trial.
[20] In the result, the motion judge dismissed the motion. However, the parties were unable to agree on the language of the formal order. Counsel for Ms. Sobeski wanted the following paragraph included in the order:
- THIS COURT ORDERS AND DIRECTS that the Defendant, Alfred Mamo, forthwith deliver to Nynna Sobeski, also known as Nynna Ionson all her documents and property in his possession.
The parties returned to the motion judge to settle the order.
[21] Counsel for Mr. Mamo submitted that on his motion he did not seek the relief requested in para. 2, and therefore it should not be included in the formal order. The motion judge rejected this submission and, in supplementary reasons, stated at paras. 5, 6, 7 and 8 [[2011] O.J. No. 3684, 2011 ONSC 4814 (S.C.J.)]:
It is true that Mr. Mamo did not ask specifically for the relief that was granted to him. He did, however, to quote from his notice of motion, seek "Such other Order as this Honourable Court may deem just."
Rule 1.05 of the Rules of Civil Procedure provides that "when making an order under these rules, the court may impose such terms and give such directions as are just."
In my opinion, paragraph 2 of the draft order is both necessary and just for the fair resolution of the litigation, and, as I explain in my Reasons for Decision, this direction provides a means for Mr. Mamo to fulfill his professional obligations to Ms. Ionson, which I add include returning her property to her, and also defend himself in the litigation brought by Mr. Sobeski and also comply with the Rules of Civil Procedure.
Pursuant to the jurisdiction provided by rule 1.05, paragraph 2 is a direction that is just in the circumstances of this case.
The Appeal
[22] Counsel for Mr. Mamo asserts three grounds of appeal.
[23] First, the motion judge failed to properly apply the test for providing relief from the deemed undertaking by failing to balance the competing interests of the parties in determining whether the interests of justice outweighed any prejudice that would result from the disclosure.
[24] Second, the motion judge erred in referring to issues of solicitor/client confidentiality, privilege and other unspecified professional duties not apparent on the face of the records. Counsel submitted that none of the documents were protected by solicitor/client privilege since they were produced to Mr. Sobeski in the matrimonial litigation. Counsel also stated that nothing Ms. Sobeski said in confidence to Mr. Mamo was sought to be used.
[25] Third, the motion judge erred in directing that the documents in issue should be returned to Ms. Sobeski.
Analysis
(a) Does the deemed undertaking rule apply to the circumstances of this case?
[26] I start with the express language of rule 30.01. The complete text of the rule is attached as an appendix to these reasons.
[27] Before a court considers whether it should grant relief from the deemed undertaking pursuant to rule 30.1.01(8), it must first decide whether the deemed undertaking applies in the particular circumstances presented to the court. Rule 30.1.01(1), (2) and (3) provide:
APPLICATION
30.1.01(1) This Rule applies to, (a) evidence obtained under, (i) Rule 30 (documentary discovery), (ii) Rule 31 (examination for discovery), (iii) Rule 32 (inspection of property), (iv) Rule 33 (medical examination), (v) Rule 35 (examination for discovery by written questions); and (b) information obtained from evidence referred to in clause (a).
(2) This Rule does not apply to evidence or information obtained otherwise than under the rules referred to in subrule (1).
Deemed Undertaking
(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.
[28] The first question is: Did Mr. Mamo obtain Ms. Sobeski's documents under Rule 30 (documentary discovery), Rule 31 (examination for discovery), Rule 32 (inspection of property), Rule 33 (medical examination) and Rule 35 (examination for discovery by written questions) as specified in rule 30.1.01(1)(a)?
[29] This question was not raised in either the written or oral submissions of the parties. Indeed, both parties proceeded on the basis that the deemed undertaking rule applied in this case. After the oral argument, we invited counsel to address this question in writing.
[30] Counsel for Mr. Mamo submitted that for the documents to be covered by the deemed undertaking, they must have been obtained under Rule 30 (documentary discovery). Counsel further submitted that documentary discovery is a process by which one party to a proceeding discloses relevant documents to the other parties. Mr. Mamo obtained Ms. Sobeski's documents from his client for the dominant purpose of her defence and not from another party in the matrimonial proceeding.
[31] Counsel for Mr. Mamo also submits that limiting the application of the deemed undertaking accords with the common law rationalization for the rule as recognized by Morden A.C.J.O. in Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906 (C.A.), at para. 36, quoting Prudential Assurance Co. v. Fountain Page Ltd., [1991] 1 W.L.R. 756, [1991] 3 All E.R. 878 (Q.B.), at pp. 764-65 W.L.R.:
The rational basis for the rule is that where one party compels another, either by the enforcement of a rule of court or a specific order of the court, to disclose documents or information whether that other wishes to or not, the party obtaining the disclosure is given this power because the invasion of the other party's rights has to give way to the need to do justice between those parties in the pending litigation between them; it follows from this that the results of such compulsion should likewise be limited to the purpose for which the order was made, namely, the purposes of that litigation then before the court between those parties and not for any other litigation or matter or any collateral purpose[.] (Italics in original; underlining added)
Counsel reasons that the production of documents by Ms. Sobeski to her own lawyer for the dominant purpose of proving her case was not contemplated by the common law implied undertaking and therefore the deemed undertaking in rule 31.1.01(3) should be viewed in the same way. This of course differs from Mr. Mamo's original position.
[32] Counsel for Ms. Sobeski submits that Mr. Mamo obtained the documents under Rule 19 of the Family Law Rules, O. Reg. 114/99 that require a party to disclose to other parties' documents relevant to any issue in the case, which is equivalent to Rule 30 of the Rules of Civil Procedure. Counsel also observes that Rule 20 of the Family Law Rules, which provides for oral discovery, is similar to an examination for discovery under Rule 31 of the Rules of Civil Procedure. Some of the documents in issue were produced during the questioning process provided for in Rule 20 of the Family Law Rules. As I understand this submission, Rules 19 and 20 under the Family Law Rules are the equivalent of documentary and oral discovery under Rules 30 and 31 of the Rules of Civil Procedure and that a proper interpretation of the Family Law Rules 19 and 20 is that the deemed undertaking ought to apply.
[33] In my view, while the documents were provided to Mr. Mamo by Ms. Sobeski in connection with her retainer of Mr. Mamo in the matrimonial proceedings, they were not obtained by Mr. Mamo under rule 30.1.01(1)(a). Rule 30.1.01(2) restricts the deemed undertaking to evidence or information obtained under rule 30.1.01(1). As this court stated in Kitchenham v. AXA Insurance Canada (2008), 94 O.R. (3d) 276, [2008] O.J. No. 5413, 2008 ONCA 877, at para. 10, "the Rule exists to protect the privacy interest of the party compelled by the rules of disclosure to provide that information to another party to the litigation" (emphasis added).
[34] I conclude from the above that on the basis of the express language of rule 30.1.01(1) and (2), the deemed undertaking does not apply to Mr. Mamo in these circumstances.
[35] As I have concluded that the deemed undertaking rule does not apply in the circumstances of this case, it is unnecessary for me to consider the first ground of appeal -- whether the motion judge properly applied the test for providing relief pursuant to rule 30.1.01(8). It is also unnecessary to consider the second ground of appeal concerning solicitor/client privilege and related issues. Mr. Mamo only seeks to use the documents that were produced to Mr. Sobeski in the matrimonial proceedings not subject to solicitor/client privilege. I now turn to the third ground of appeal -- whether the motion judge erred in directing that the documents in issue should be returned to Ms. Sobeski.
(b) Did the motion judge err in ordering that Mr. Mamo should return the documents to Ms. Sobeski?
[36] The motion judge ordered that the documents should be returned to Ms. Sobeski as part of his plan to provide a means for Mr. Mamo to escape the dilemma of having to honour the deemed undertaking while, at the same time, having to disclose the documents in his affidavit of documents. The so-called "escape route" also provided Mr. Mamo with the possibility that he could bring a motion for production of the documents under rule 30.10.
[37] The return of the documents, as already noted, was not requested by Mr. Mamo in his notice of motion. Surprisingly, there was no cross-motion by Ms. Sobeski for the return of the documents. It was only when the motion judge devised the "escape route" that Ms. Sobeski, on the settlement of the order, sought an express provision for the return of the documents, which the motion judge granted. Counsel for Mr. Mamo, both before the motion judge and on this appeal, takes the position that the motion judge was not entitled to grant relief that was not asked for. He cites three cases of this court in support of that position: Kalkinis (Litigation Guardian of) v. Allstate Insurance Co. of Canada (1998), 1998 6879 (ON CA), 41 O.R. (3d) 528, [1998] O.J. No. 4466 (C.A.); Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74, [2002] O.J. No. 1365 (C.A.), at paras. 60-61; and Clarkson v. Lukovich, 1988 8776 (ON CA), [1988] O.J. 902, 14 R.F.L. (3d) 436 (C.A.).
[38] In my view, the motion judge was not entitled, of his own motion, to devise a remedy that was not requested by either party to this dispute. By doing so, the motion judge denied Mr. Mamo the fair opportunity to address that issue until the settlement of the order by way of written submissions, which in my view was too late: see 460635 Ontario Ltd. v. 1002953 Ontario Inc., 1999 789 (ON CA), [1999] O.J. No. 4071, 127 O.A.C. 48 (C.A.), at para. 9. I would therefore set aside the order requiring Mr. Mamo to return the documents in issue to Ms. Sobeski. However, in doing so I am mindful that Mr. Mamo's retainer has been terminated and the documents in issue are the property of Ms. Sobeski. I would therefore set aside the order of the motion judge, without prejudice to Ms. Sobeski's right to take the appropriate steps for the return of her documents, which to date she has not done, and without prejudice to Mr. Mamo's right to bring the appropriate motion under rule 30.10 for the production of the documents for the purpose of this action.
Disposition
[39] In the result, I would allow the appeal and set aside the order of the motion judge.
Costs
[40] This case was originally argued by both parties on the basis that the deemed undertaking rule applied. In view of the fact that I would dismiss the appeal on the basis that the deemed undertaking rule does not apply, I would make no order as to costs of the appeal. As to the costs before the motion judge, if the parties are not able to agree, they can make brief written submissions to the court. The appellant is to make his submissions within 15 days of the release of this order and Ms. Sobeski may make her submissions within ten days thereafter. Such submissions shall be double-spaced and limited to five pages.
Appeal allowed.
APPENDIX
RULE 30.1 DEEMED UNDERTAKING
APPLICATION
30.1.01(1) This Rule applies to, (a) evidence obtained under, (i) Rule 30 (documentary discovery), (ii) Rule 31 (examination for discovery), (iii) Rule 32 (inspection of property), (iv) Rule 33 (medical examination), (v) Rule 35 (examination for discovery by written questions); and (b) information obtained from evidence referred to in clause (a).
(2) This Rule does not apply to evidence or information obtained otherwise than under the rules referred to in subrule (1).
Deemed Undertaking
(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.
Exceptions
(4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents.
(5) Subrule (3) does not prohibit the use, for any purpose, of, (a) evidence that is filed with the court; (b) evidence that is given or referred to during a hearing; (c) information obtained from evidence referred to in clause (a) or (b).
(6) Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding.
(7) Subrule (3) does not prohibit the use of evidence or information in accordance with subrule 31.11(8) (subsequent action).
Order that Undertaking does not Apply
(8) If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just.
[^1]: Juman is a British Columbia case and it was the common law implied undertaking that was in issue in that case.