SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-CV-459346

MOTION HEARD: November 23, 2012

RE: Hagit Genossar

v.

Skyline International Development Inc.

BEFORE: Master Thomas Hawkins

APPEARANCES:

Jeffrey W. Kramer for moving plaintiff
Fax: (416) 601-0712

Thomas J. Gorsky for responding defendant
Fax: (416) 603-6035

REASONS FOR DECISION

[1] This is a motion by the plaintiff for an order setting aside an order which I made on July 24, 2012 on a motion made by the defendant Skyline International Development Inc. (“Skyline”) without notice. At that time I ordered the contents of this court file to be sealed, treated as confidential and not form part of the public record.

[2] This is a wrongful dismissal action. The plaintiff is the former general counsel of Skyline. In support of its motion for a sealing order Skyline tendered an affidavit by Michael John Sneyd, its chief executive officer. Mr. Sneyd stated that Skyline had received a draft of the statement of claim in this action which he said contained allegations which improperly disclosed confidential solicitor/client communications between the plaintiff and Skyline. Mr. Sneyd said that the plaintiff’s lawyer intended to have the statement of claim issued “imminently”. In these circumstances I made the sealing order in question on July 24, 2012.

[3] On November 7, 2012 the parties settled this motion apart from the issue of costs. The sealing order of July 24, 2012 is to be set aside. So ordered. The plaintiff is to deliver an amended statement of claim. She has agreed to delete paragraph 11 of that pleading and to amend paragraph 12. The plaintiff is hereby given leave to do so. Skyline now concedes that the allegations about communications between the plaintiff and Skyline are not confidential because the same allegations have been made in pleadings in other litigation involving Skyline. Those pleadings are not sealed. They are part of the public record.

[4] Mr. Sneyd did not mention these other pleadings in the affidavit which he swore in support of Skyline’s motion for a sealing order. There is a dispute between the parties over whether Mr. Sneyd was aware of these other pleadings when he swore his supporting affidavit. There is no evidence before me that Mr Sneyd did know of these other pleadings when he swore his supporting affidavit.

[5] In my view, Skyline management should have known of the pleadings in the other litigation involving Skyline. Skyline should not have brought its motion for a sealing order, given the existence of the other similar pleadings that form part of the public record. I put what happened down to poor communication within Skyline management, rather than malfeasance at Skyline.

[6] Because I am of the view that Skyline ought not to have brought its motion for a sealing order, I award the costs of this motion to the plaintiff. I fix those costs at $3,000 and order Skyline to pay such costs to the plaintiff within 30 days. I have awarded costs on a partial indemnity basis and disallowed much of the time spent after November 7, 2012 when the motion was settled apart from costs.

(original signed)

Master Thomas Hawkins

DATE: March 8, 2013