Court File and Parties

COURT FILE NO.: 526/02

DATE: 2003-04-03

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Mark Rubinoff et al. v. Richard Wachsberg et al.

BEFORE: Coo J.

COUNSEL: J. W. Kramer, for the Plaintiffs Warren Mueller, Q.C. and K. A. McEachern, for all defendants Stuart M. Ghan, for David Riseman

HEARD: March 20, 2003

ENDORSEMENT

[1] This is an appeal from the order of Master MacLeod, denying leave to add Riseman as a defendant, and denying the right to amend the statement of claim as sought and opposed.

[2] As the Master rightly said, "This is a case about lies and dishonesty." The appellant Rubinoff was in a business relationship with some of the defendants. The deterioration of the relationship ultimately gave rise to applications brought by each side, involving claims for damages for a variety of alleged business misconduct. The Master's reasons outline the particulars. That litigation proceeded and there were affidavits filed by the parties and by witnesses, most of whom were employees of the Wachsbergs or their corporations.

[3] The way matters unfolded is carefully outlined by the Master and will not be revisited by me. The participants came to a settlement. Rubinoff takes the position that he knew the opposite side and their witnesses were engaged in a tightly controlled conspiracy to lie about relevant circumstances. In particular, he believed that the Wachsbergs coerced more than one of their witnesses into swearing false affidavits. He decided to settle, because he feared he could not afford the litigation, presumably against the background of a number of affiants having given evidence contrary to his interests, and there being a threat to see to the laying of criminal charges against him.

[4] Many of the settlement terms were met, but some allegedly were not. Rubinoff decided to commence this new action to enforce the settlement. Sometime after that happened, more than one of the erstwhile opposing witnesses advised Rubinoff that they had not told the truth in their affidavits and any cross-examinations. His position is that the witnesses said they had been coerced by the opposition in the application proceedings to swear falsely. He wishes now to rely on those circumstances, to plead to have the settlement set aside.

[5] He also wishes to rely on the alleged falsity of a confession of perjury made, at the time of his cross-examination, by Riseman. Riseman was at the time of the application litigation, a supporter of Rubinoff. The plaintiff wants to add Riseman as a defendant and claim damages against him, in effect as a late-starting co-conspirator working against Rubinoff's commercial interests.

[6] To deal first with perhaps less complex matters, Riseman is fully protected by the absolute witness privilege in regard, not just to that to which he swore, but that about which he spoke in a settlement document which dealt in part with his projected evidence. There is no valid distinction between what he agreed to as being his testimony as apart of the settlement, and what his evidence turned out to be, or notes that might have been made by interested parties, or their counsel, as to what might be expected from him in the litigious process. To circumscribe the protection afforded to witnesses as suggested would be to undermine the whole purpose and policy of the privilege and its absolute nature. The appeal from the Master's order in this regard will be dismissed.

[7] The defendants argue that the plaintiff took advantage of the settlement, received some or all of the proceeds thereof, and sought to use this very lawsuit to assert a claim to have the deal fully carried out. The defendants contend that, as a result, he is now barred from seeking to set the settlement aside. But the plaintiff's point is that it was only long after he commenced this action that he first came to have evidence from the other side that his fixed view of the witness conspiracy was true. Standing alone, this point made by the defence is of no great persuasive power.

[8] Dealing with the major issues on the appeal, the Master was right in the conclusions at which he arrived. I recognize that there is the inevitable temptation, in a case such as this, simply to let the whole matter be tried, but I am at one with the Master's decision, certainly on the subject of reliance. The almost inevitable dilemma presented by the ascertained facts in this case is readily apparent. Does one turn a blind eye to possible perjury and suborning thereof, whatever may have been its practical impact on conduct of the litigation, or does one take a modestly broader look at what happened and its context.

[9] There is a good deal of material on the basis of which to treat the alleged recantations of evidence with more than just suspicion, or as something not to be considered or sought to be weighed on a motion such as this. There are references to other witnesses on the point, none of whom are identified. One of the recanting witnesses has made a second statement recanting the first. There was at least one witness who was never cross-examined in the first proceedings. There is the inevitable concern that this sort of motion strikes at the heart of conduct of litigation, and should not be dealt with as just another case in which the everything can be sorted out at a trial, many years after the events and many years after settlement of the issues between the parties. It is a factor, although not conclusive, that this is not a case in which it is alleged that the court has been misled in arriving at decisions on the basis of suborned perjury.

[10] This aspect of the fight between the parties should end here. To rule otherwise on the peculiar facts presented in these proceedings is to go too far away from the principle that the litigant and his or her counsel must take full responsibility for assessing what is likely to occur at a trial, and govern their conduct and decisions accordingly. Prospective untrue evidence is not a novelty.

[11] The appeal is dismissed with costs to the respondents, to be fixed by conference call if required.

Douglas Coo J.

DATE: April 3, 2003