ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
COURT FILE NO.: 03-140/13
DATE: 20140625
BETWEEN:
CYNTHIA RANDI BER
Applicant
– and –
ANNE LILY GOLDBERG and
MARDA KAREN GOLDBERG DASSAS
Respondents
Lisa Filgiano, Counsel, for the Applicant
Sarit E. Batner and Sam Rogers, Counsel for the Respondent, Anne Lily Goldberg, Moving Party on Motion
Tanya A Pagliaroli, Counsel for the Respondent Marda Karen Goldberg Dassas, on Motion
HEARD: JUNE 25, 2014
ENDORSEMENT: GREER J.:
[1] The Application in this matter has been commenced by Cynthia Randi Ber, Applicant (“Randi”). The Application was issued on November 12, 2013, where Randi asks the Court to order that the Respondent, Anne Lily Goldberg (“Anne”), undergo a capacity assessment to determine if Anne has capacity to manage her property and personal care. In addition, Randi asks for an Order that the Respondent, Marda Karen Goldberg Dassas, pass her Accounts while acting under a Power of Attorney for Anne’s property from April 17, 2007 to November 15, 2013. Randi also asks that the Court appoint an independent Guardian of Anne’s property, if she is found to be incapable of managing it herself.
[2] The Motion before me arose out of this litigation. The Motion is brought on by Anne and it is whether a transcript of an examination of Anne, from a settled action, is admissible in this unrelated proceeding.
[3] The Transcript arose 4years ago in May 2010, in an oppression action brought against Anne and her late husband’s companies, by her son, Perry Goldberg (“Perry”). Randi now, in this action, although she was not a party in the Perry Litigation, wants to use the Transcript in this Application. Randi wants to show, through the use of this transcript, that Anne lacks capacity due to her failure to correctly answer certain questions during the examination.
[4] Anne takes the position that the “deemed undertaking rule” applies to the Transcript and it should therefore not be admitted for use against her in this proceeding.
[5] Randi takes the position that the Transcript is not protected by the deemed undertaking rule because it was a transcript of a cross-examination, not a discovery.
Some Background Facts
[6] Anne was married to the late Jack Goldberg, who died on April 17, 2007. They had 3 children namely Randi, Marda and Perry. Anne was the sole beneficiary of Jack’s Estate. Randi, in her Application, says Anne’s aggregate net worth is in excess of $15,000,000. Some of those assets include a company that owns 28 taxi licenses, another that owns 9 plus some commercial property and 5 residential properties plus liquid assets.
[7] Perry commenced an action against his father’s estate, Anne and the family businesses in 2009. In May 2010, Anne was cross-examined in that litigation. She asked her brother, Morris Krandel and her daughter, Marda, to be her litigation guardians for purposes of that litigation, as she did not want to be personally bothered dealing with it. By Order of Mr. Justice Campbell made September 21, 2011, he appointed them as Anne’s Litigation Guardians.
[8] Anne says she did not swear an Affidavit in that proceeding brought on by Perry, and she was never cross-examined on an Affidavit. On March 31, 2010, Perry served a summons on Anne, returnable April 7, 2010, for an examination out of court as a witness before a hearing. Anne did not attend on that examination.
[9] Mr. Justice Campbell, who was case-managing the Perry Litigation, on April 21, 2010, ordered Anne to be examined on May 5, 2010. She attended on that date, was examined, and the Transcript was prepared.
[10] On April 13, 2011, Mr. Justice Campbell, on his own motion, converted the Perry Litigation from that of an Application to an action. In his Endorsement, he wrote:
The evidence of those individuals who have delivered affidavits and the cross-examination transcript may form part of the evidentiary record. Any further examinations for discovery shall be supervised by the Master to deal with undertakings and refusals to date in the context of the pleadings to be delivered.
The Perry Litigation eventually settled in early 2013 before Randi issued her Application.
Positions of the Parties
[11] The Transcript is in the Court File and came sealed prior to the hearing. No further examination of Anne ever took place after May 5, 2010. Anne says at one point Randi concedes the Transcript was protected by the deemed undertaking rule, and agreed that it could not be used in this proceeding without leave of the Court. She now has changed her position on that and now asserts that the Transcript is not covered by the rule. She wants the whole of the Transcript to be a part of the public record in this Application, which is an unrelated proceeding.
[12] Anne says that the Court should not allow the Transcript to be used in the factum. Randi now seeks to use it. She says, Randi is “…using the processes of past litigation as a sword in this new, unrelated litigation.” Anne says the use of the Transcript is protected by the deemed undertaking rule.
[13] Randi says in her Cross-Motion that the Transcript is not protected by the deemed undertaking rule, or if it is, the Court should order that the rule not apply to this Transcript.
[14] Randi says Anne was cross-examined under Rule 39.03 of the Rules of Civil Procedure in the Perry Litigation. She says that some of the evidence in the Transcript demonstrates Anne’s incapacity, “…including severe memory issues, and her inability to manage her own property.”
[15] Randi further says that if the deemed undertaking rule is found by me to apply to the Transcript, it is in the “interests of justice” to allow it in, as that outweighs any prejudice to Anne if the Transcript is disclosed.
Analysis
[16] I have concluded that the deemed undertaking rule does apply and that the Transcript shall remain sealed and shall not be used by Randi in this Application.
[17] Subrule 30.1.01(1) applies to evidence obtained under Rules 30, 31, 32, 33 and 35. Rule 30 applies to documentary discovery and Rule 31 to examination for discovery. Subrule 30.1.01(3) covers Deemed Undertaking as follows:
All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.
There are exceptions to this set out in subrules (4) and (5) and (7). Subrule (8) says that the Court, if satisfied that the interest of justice outweighs any prejudice that would result to a party who discloses the evidence, may order that subrule (3) does not apply to the evidence or to the information obtained from it, and may impose “such terms and give such direction as are just.”
[18] There is no evidence that Anne was ever cross-examined on an affidavit. Rule 39.03(1) says a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing. Randi’s position is that Rule 39 is not included in the list of exceptions in subrule 30.1.01 or to evidence obtained under the Rules listed there. She also says it does not matter, in this instance, whether or not the Transcript could be used as an examination for discovery transcript in the Perry Litigation. She says Anne was examined under Rule 39.03.
[19] Juman v. Doucette, 2008 SCC 8, [2008] 1 S.C.R. 157 sets out the rationale for the implied undertaking rule in pp. 171-173. While the public interest in getting at the truth in a civil action outweighs, says the Court in para. 25, the examinee’s privacy interest, but the latter is nevertheless entitled to a measure of protection. In para. 26, the Court says that litigants who get this protection that certain documents and answers will not be used for collateral purposes or ulterior purposes, will be “encouraged to provide a more complete and candid discovery.”
[20] In the case before me, in my view, Randi is trying to obtain having the Transcript as part of the evidence on her Application, for ulterior purposes. She is trying to have the Court declare that Anne is incapable of managing her property. Anne has already gone through one civil lawsuit, commenced by her own son, over money. She now faces a similar lawsuit in new clothing, but for the same purpose. Her daughter, Randi, now wants to control Anne’s assets.
[21] I cannot see that the interests of justice will be in any way served by allowing the Transcript to become a public document. Anne’s privacy is at risk having all facts about her disclosed before Randi’s Application is heard on its merits. The Court is given the power under subrule (8) to order that the deemed undertaking rule does not apply. This, in my view, is not one of those cases.
[22] Randi is a non-party in the proceeding where the Transcript was produced. As noted by Mr. Justice Lederman in Livent v. Drabinsky (2001), 2001 28039 (ON SC), 53 O.R. (3d) 126, citing a 1990 Article by John B. Laskin on the Rule, in (1990) 11 Advocates’ Q. 298 at 315, where the person asking to have the rule set aside, is a “stranger” and it is against the wishes of the person to whom the document applies. It is also pointed out in para. 16, that the integrity of the rule should not be routinely infringed upon. See also: Sobeski v. Mamo (2011) 105 O.R. (3d) 532, 2011 ONSC 2153 paras. 30 and 45.
[23] The Transcript was the result of an “examination” in a totally different proceeding. Counsel for Anne pointed out that Anne is not represented by a litigation guardian in this proceeding, and that she is able to instruct counsel in this proceeding, despite her age. She asked me to read the Transcript. I have done so. She admits 4 years ago that she is close to Marda but not close to Randi. It would be an injustice for the Court to say that in circumstances such as this, and in an unrelated proceeding, the deemed undertaking rule should be set aside.
[24] Anne’s Motion is therefore granted and Randi’s Cross-Motion is dismissed. If the parties cannot otherwise agree on Costs, I will receive brief Written Submissions from them, no longer than 3 pages in length plus a Bill of Costs, time dockets and case law. Since Anne was successful on the Motion, her counsel shall serve and file her Written Submissions on Randi’s counsel within 30 days of this Order. Randi’s counsel shall have 10 days thereafter to respond and Anne’s counsel 5 days thereafter to Reply, if any.
[25] All Orders are to go accordingly. I have resealed the Transcript and Anne’s counsel may arrange to have it removed from the Court file, if required.
Greer J.
Released: June 25, 2014
TYPED VERSION TO FOLLOW
COURT FILE NO.: 03-140/13
DATE: 20140625
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
BETWEEN:
CYNTHIA RANDI BER
Applicant
– and –
ANNE LILY GOLDBERG and
MARDA KAREN GOLDBERG DASSAS
Respondents
ENDORSEMENT
Greer J.
Released: June 25, 2014
TYPED VERSION TO FOLLOW