Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200526 DOCKET: C67805

Gillese, Brown and Jamal JJ.A.

BETWEEN

Samuel Kazen Plaintiff (Appellant)

and

Whitten & Lublin Professional Corporation, Daniel Asher Lublin, David Alan Whitten, Marc Warren Kitay, Stephen Clifford Wolpert and Gauri Jalota Defendants (Respondents)

Counsel: R. Lee Akazaki, for the appellant Gavin Tighe and Lauren Rakowski, for the respondents Whitten & Lublin Professional Corporation, Daniel Asher Lublin, David Alan Whitten, Marc Warren Kitay and Stephen Clifford Wolpert

Heard and released orally: May 25, 2020 by Videoconference

On appeal from the order of Justice Paul B. Schabas of the Superior Court of Justice, dated November 15, 2019.

Reasons for Decision

[1] The appellant is a lawyer. He sued the respondents, a law firm and individuals connected to it (the “Action”). The cause of action is an alleged breach of solicitor-client privilege arising from the respondent law firm having provided the appellant with legal advice several years earlier. The alleged breach is said to have occurred on a motion in an unrelated lawsuit (the “earlier proceeding”).

[2] The respondents moved to have the Action struck. By order dated November 15, 2019, the motion judge struck the Action on the basis of issue estoppel. The appellant appeals against the order.

[3] For the reasons that follow, the appeal is dismissed.

[4] In the Action, the appellant raised substantially the same alleged breach of solicitor-client privilege as had been dealt with in the earlier proceeding. In a motion on the earlier proceeding, the Master ruled against the appellant on the matter of solicitor-client privilege. The Master found, among other things, that if any privilege had existed, it had been expressly waived.

[5] As the motion judge set out, relying on Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, the test for issue estoppel consists of three parts:

i. the same question has been decided; ii. the judicial decision which is said to create the estoppel was final; and iii. the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised [or] their privies.

[6] We begin by noting that there is no real question that the second and third parts of the test are met. The appellant appealed the Master’s decision but later withdrew the appeal. Accordingly, the Master’s decision on solicitor-client privilege was a final decision. And, on the Motion before the Master relating to the issue of solicitor-client privilege, the parties or their privies were the appellant and the respondents.

[7] The appellant’s primary contention on this appeal focusses on the first part of the test for issue estoppel. He argues that the Master did not decide the question of solicitor-client privilege. In making this argument, he relies on a narrow reading of one sentence in para. 23 of the Master’s decision, where the Master refers to a legal consultation. We do not accept this argument. A fair and full reading of the Master’s reasons as a whole show that the issue of solicitor-client privilege was squarely before the Master and that she found that the appellant had “expressly waived” that privilege. Thus, the same question was decided by the Master as that which the appellant raised in the Action.

[8] Accordingly, the motion judge did not err in finding that the Action was barred by issue estoppel or in striking the statement of claim without leave to amend.

[9] The appeal is dismissed with costs to the respondents fixed in the amount of $8,000, inclusive of disbursements and applicable taxes.

“E.E. Gillese J.A.”

“David Brown J.A.”

“M. Jamal J.A.”