SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-CV-371380
MOTION HEARD: August 30, 2012

RE: Legal Aid Ontario v. Robert Howard Gertler and Shirley King

BEFORE: MASTER R.A. MUIR

COUNSEL:
R. Das for the Moving Parties/Defendants

M. Crane for the Responding Party/Plaintiff

REASONS FOR DECISION

[ 1 ] This is a motion brought by the defendants pursuant to Rule 34 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules”). The defendants seek an order and directions with respect to the cross-examination of certain witnesses put forward by the plaintiff in response to a pending motion brought by the defendants for an order dismissing the plaintiff’s action (the “Pending Motion”). The Pending Motion is now scheduled to be heard on May 28, 2013.

[ 2 ] On the Pending Motion, the defendants seek to dismiss the plaintiff’s claim on the basis that the parties previously agreed to a settlement of the claims now being advanced by the plaintiff in this action. On this motion, the defendants seek full and complete production of the file kept by the plaintiff’s former lawyer on this matter, including her time dockets from June, 2008 to January, 2009. The defendants also seek an order that the plaintiff’s witnesses re-attend at continued cross-examinations to answer any questions that may arise from the production requested on this motion.

[ 3 ] The defendants argue that the requested production is relevant to the issues on the Pending Motion and that the plaintiff has waived any privilege that may have attached to the documents. The plaintiff takes the position that the documents requested are either irrelevant to the issues on the Pending Motion or are protected by privilege, which has not been waived.

BACKGROUND

[ 4 ] A similar motion was heard by me on November 26, 2010. The general background to this action and this motion is set out in my reasons for decision dated November 29, 2010. Paragraphs 2 to 11 of those reasons read as follows:

2 Legal Aid Ontario ("LAO") is a corporation established pursuant to the Legal Aid Services Act , S.O. 1998, c. 26 . One of LAO's functions is to establish and administer a system for providing legal aid services to low income residents of Ontario.

3 The defendant Robert Howard Gertler ("Gertler") is a lawyer licenced to practice law in Ontario. At the material times relevant to this action, Gertler was the principal of Gertler and Associates, an immigration and refugee law firm located in Toronto. Between 1993 and the end of 2008, Gertler was empanelled by LAO as a member of its refugee law panel which enabled him to provide legal services to certain qualified clients and to receive payment for those services from LAO.

4 It appears that in 2005, LAO began to investigate Gertler in respect of what LAO alleges was his failure to provide quality legal services to his clients and questions concerning his billing practices. This investigation culminated with LAO issuing a formal notice, in April, 2008, to remove Gertler from the refugee panel. Following the delivery of LAO's notice, there apparently ensued a series of discussions and communications between LAO and its lawyer, and Gertler and his lawyer, which resulted in an alleged settlement of the matters in dispute between the parties. This alleged settlement is now the subject matter of the Pending Motion.

5 Specifically, the defendants take the position that the plaintiff's claims against Gertler were settled on or about September 17, 2008 when Gertler agreed to accept an offer to settle from LAO as set out in a September 11, 2008 letter from LAO's Area Director for Etobicoke, Vicki Moretti (the "September 17 Agreement"). The offer Gertler purported to accept provided for the following terms:

(a) LAO will accept Gertler's resignation from all legal aid panels effective December 31, 2008;

(b) LAO will not disclose the results of its investigation of Gertler;

(c) Gertler will pay LAO the amount of $75,000.00;

(d) The parties will execute mutual releases satisfactory to counsel.

6 Following Gertler's acceptance of this offer, there ensued a great number of discussions and communications between LAO and Gertler's counsel spanning several months. The vast majority of these discussions and communications related to negotiations over the exact wording of the mutual release and the minutes of settlement. Although the September 17 Agreement did not call for minutes of settlement it does appear that the parties proceeded to negotiate the terms of such a document without objection, at least initially.

7 It appears that the negotiations concerning the terms of the September 17 Agreement came to a head on or about December 5, 2008. On that date, LAO's counsel, Tracy Pratt, sent a letter to Gertler's counsel, Ron Aisenberg, in which she stated that there was no settlement due to what she alleged was Gertler's failure to accept all of the terms of the September 17 Agreement. Following receipt of this letter, Mr. Aisenberg sent reply correspondence to Ms. Pratt on December 10, 2008 in which he maintained Gertler's position that there was indeed a binding settlement agreement between the parties.

8 Mr. Aisenberg followed up on his December 10, 2008 letter with a voice-mail message to Ms. Pratt on the same day (just a few minutes after his letter was faxed) in which he suggested a without prejudice discussion on how the parties' differences might be resolved. In his voice mail he referred to this process as a "brand new settlement". In his affidavit sworn February 26, 2010 (to which no reply affidavit has been filed) Mr. Aisenberg placed this voice-mail in context. He deposes that he had a follow-up telephone discussion with Ms. Pratt during the week of December 15, 2010 in which he suggested, again without prejudice to his position that a binding settlement agreement was already in place, that the parties engage in fresh discussions to "get this done".

9 It appears that LAO was amenable to this suggestion and thereafter the parties engaged in further discussions and negotiations in order to attempt to arrive at an agreeable resolution. Despite these efforts, however, this second round of negotiations failed to achieve a settlement. This is confirmed by an email sent by Ms. Pratt to Mr. Aisenberg on January 5, 2009 and Mr. Aisenberg's response in an email also dated January 5, 2009 in which he stated "[t]he only thing I agree with in your email is that no new settlement was concluded for this go round".

10 On January 13, 2009, Ms. Pratt advised Mr. Aisenberg that as a result of the breakdown of negotiations it was LAO's position that "all maters under discussion [were] off the table". Of course, the questions of whether the parties ever came to terms and whether a binding settlement agreement was ever entered into are question to be determined by the judge hearing the Pending Motion and not by me on this motion.

11 Following the commencement of this action on January 30, 2009, Gertler, through his counsel, made it clear that he was taking the position that the September 17 Agreement created a binding settlement agreement between the parties and that he would not be delivering a defence but rather he intended to bring a motion to strike out the statement of claim. On or about March 30, 2009, the defendants served the Pending Motion, with a supporting affidavit sworn by Mr. Aisenberg on March 27, 2009. The plaintiff thereafter delivered responding affidavits from Ms. Pratt sworn October 29, 2009 and Ms. Moretti sworn November 4, 2009. The defendants then delivered a reply affidavit from Mr. Aisenberg sworn February 26, 2010.

[ 5 ] In my reasons of November 29, 2010 I made an order that the plaintiff’s witnesses answer questions about certain email communications. I found that by including references to such email messages in its evidence on the Pending Motion, the plaintiff had waived any settlement privilege that may have attached to the communications and, moreover, that fairness dictated that the defendants be permitted to ask questions about the subject email messages, given that the plaintiff was relying on the messages in response to the Pending Motion.

[ 6 ] It appears that the cross-examinations of the plaintiff’s witnesses took place on February 22, 2012 and March 9, 2012. During the course of the examination of Ms. Pratt on March 9, 2012, the defendants asked for production of the file kept by Ms. Pratt in connection with this matter, including her time dockets from June, 2008 to January, 2009. The plaintiff refused on the basis of relevance and privilege.

[ 7 ] Following Ms. Pratt’s examination, on March 29, 2012, counsel for the plaintiff wrote to the defendants’ lawyer and enclosed four selected docket entries made by Pratt during the requested time period. The plaintiff took the position that all of the other docket entries were irrelevant to the issues on the Pending Motion.

ANALYSIS

[ 8 ] The defendants cite several paragraphs in the affidavits sworn by Ms. Pratt and Ms. Moretti in support of their argument that the plaintiff has waived any privilege that may have attached to Ms. Pratt’s file. I was referred to paragraphs 12, 17, 18, 21, 22, 24, 28, 29, 30, 36 and 38 of Ms. Pratt’s affidavit and paragraphs 10, 19 and 21 of Ms. Moretti’s affidavit.

[ 9 ] In particular, the defendants argue that these paragraphs reference discussions between Ms. Moretti and Ms. Pratt. They also argue that certain statements in these paragraphs that refer to the plaintiff’s position with respect to the terms of the alleged settlement, and the plaintiff’s position generally with respect to whether there was a settlement, also amount to a waiver of privilege.

[ 10 ] I have reviewed both affidavits in their entirety. In my view, there is nothing in those affidavits that can be construed as a waiver of privilege such that Ms. Pratt’s entire file should be produced. I see nothing in the affidavits that amounts to lawyer-client privilege. The affidavits simply set out the plaintiff’s position and objectives with respect to the terms of the settlement and what its requirements were in order to reach a resolution of its dispute with Mr. Gertler. It also sets out the plaintiff’s position with respect to what took place at a meeting the plaintiff had with Mr. Gertler in June, 2008. The evidence in the affidavits simply amounts to the plaintiff conveying to the defendants and to the court, what its settlement position was, what instructions it gave its lawyer and its overall position on the merits of the Pending Motion.

[ 11 ] Lawyer-client privilege is an essential part of our system of justice. It is a fundamental civil and legal right. It is a right that should be scrupulously protected by the courts unless the moving party can clearly convince the court that there has been a waiver. See Bechthold v. Wendell Motor Sales Ltd. , [2007] O.J. No. 4886 (S.C.J.) at paragraphs 26-28 . The defendants’ arguments fall far short of meeting any such onus. In my view, there has been no waiver of privilege by the plaintiff and no part of Ms. Pratt’s file need be produced.

[ 12 ] With respect to Ms. Pratt’s dockets, both sides agree that they are not covered by lawyer-client privilege except insofar as they may contain references to advice given to the client. If they do contain such advice, those portions of the dockets can be redacted when they are produced. See Juras v. Carbone , [1999] O.J. No. 5017 (S.C.J.) at paragraph 24 .

[ 13 ] The plaintiff’s position during the course of argument was simply that the dockets requested are not relevant to the issues on the Pending Motion. The principles to be applied in determining the scope of cross-examination for use on a motion are set out in Ontario v. Rothmans Inc. , 2011 ONSC 2504 (S.C.J.) at paragraph 143 . I have considered and applied those principles in determining whether all of Ms. Pratt’s dockets should be produced.

[ 14 ] In my view, no further production of dockets is required. At best, production of the redacted dockets would simply show, in general terms, the tasks performed by Ms. Pratt, when she performed those tasks and how much time she spent doing so. The issue on the Pending Motion is whether the parties were ever ad idem with respect to the terms of the settlement. I find it impossible to imagine how Ms. Pratt’s redacted docket entries can possibly be relevant to that issue. The dockets that were produced by the plaintiff all relate to Ms. Pratt’s conversations with Mr. Aisenberg. I accept that those entries may have some marginal relevance given that an issue arose during the course of Ms. Pratt’s cross-examination with respect to when she had certain conversations with Mr. Aisenberg. I do not see any relevance to the dockets beyond that purpose. I certainly do not accept that the production of those limited docket entries is an acknowledgment by the plaintiff that all of Ms. Pratt’s docket entries are relevant.

CONCLUSION

[ 15 ] For the reasons set out above, I have concluded that the plaintiff need not make the production requested by the defendants on this motion. It follows from this conclusion that the defendants’ request for an order that Ms. Pratt and Ms. Moretti attend at continued cross-examinations is unnecessary.

COSTS

[ 16 ] At the conclusion of the argument of this motion, the parties agreed that there should be a costs order in favour of the successful party on a partial indemnity basis in the amount of $3,500.00.

ORDER

[ 17 ] I therefore order as follows:

(a) the defendants’ motion is dismissed; and,

(b) the defendants shall pay to the plaintiff its costs of this motion fixed in the amount of $3,500.00, inclusive of HST and disbursements, payable within 30 days.

Master R.A. Muir

DATE: September 4, 2012