Court of Appeal for Ontario

Date: January 24, 2017 Docket: C62417

Judges: Doherty, Weiler and Roberts JJ.A.

Parties

Between

Henia Gefen in her Personal Capacity and as Estate Trustee of the Estate of Elias Gefen Plaintiff (Appellant)

and

Arie Gaertner, Miller, Canfield, Paddock and Stone LLP, the Jewish Home for the Aged, Baycrest Hospital, Baycrest Centre for Geriatric Care, Yehuda Gefen and Harry Gefen Defendants

and

Ronald Rutman, Estate Trustee during Litigation for the Estate of Elias Gefen, Deceased Respondent

Counsel

Ronald Moldaver Q.C., for the appellant

Jordan D. Oelbaum and Robin M. Spurr, for the respondent

Tanisha Tulloch, for non-party Nestor Wolicki

Heard: January 23, 2017

On appeal from the order of Justice Conway of the Superior Court of Justice, dated June 17, 2016.

Appeal Book Endorsement

[1] There was no objection to the order now under appeal by the parties who attended on the motion. The appellant, although properly served, did not attend before Conway J.

[2] There are ongoing proceedings before the Superior Court in respect of the production of the materials referred to in the Newbould and Conway orders.

[3] The respondents agree that it is open to Conway J. to make any order she deems appropriate in respect of privilege. To the extent that para. 3 of her order appears to determine any of those issues, Conway J. can vary that order if appropriate.

[4] In our view, these issues are best litigated before Conway J. in the context of the ongoing proceeding. She is in a much better position than this court to tailor an order to the specific circumstances and issues relating to the production orders and the protection of any privileges found to exist.

[5] The appeal is dismissed.

[6] The respondent, Rutman, as estate trustee during litigation, is entitled to costs in the amount of $7,500, "all in". The respondent, Wolicki, is entitled to costs in the amount of $1,000, "all in".