ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-00395074

DATE: 20141219

BETWEEN:

Hanieh Golchoobian

Applicant

– and –

Alireza Vaghei

Respondent

Golnaz Simaei, for the Applicant

Vusumzi Msi, for Thora Espinet for this motion only

HEARD: October 23, 2014

KITELEY J.

[1] On September 25, 2014, each party brought a motion which in total sought extensive relief. I adjourned the motions to October 23rd on the basis that the “privilege” motion would be heard first. On October 23, I dealt principally with paragraphs 20 to 23 of the Applicant’s Notice of Motion in which she sought the following:

20. An order that Ms. Thora Espinet be removed as solicitor of record for the Respondent, Alireza Vagehi, or an order for sanctions against Ms. Thora Espinet – whichever the Court deems appropriate – for breaching solicitor-client privileged communications between the Applicant and her solicitor of record;

21. An order that Ms. Thora Espinet delete and destroy any communications (including e-mails, chat communications, and all conversations), whether in electronic format, hard copy, recorded with a mobile phone or with any other electronic device, between the Applicant and any individual other than the Respondent, Alireza Vaghei;

22. An order that Ms. Thora Espinet provide written confirmation to the Applicant’s solicitor, within 24 hours of the Court Order, that she has complied with paragraph 21 above;

23. An Order directing Ms. Thora Espinet to disclose, to the Applicant’s solicitor, if she has provided any of the Applicant’s communications to any other individual, including the names and contact information of those individuals and an order directing those individuals to delete and destroy any communications (including e-mails, chat communications, and all conversations), whether in electronic format, hard copy, recorded with a mobile phone or with any other electronic device, between the Applicant and any individual other than the Respondent, Alireza Vaghei.

[2] The Applicant and Respondent were married in May 2007 in Tehran. They have no children together. The Respondent has three adult children from his previous marriage. When the parties emigrated to Canada on July 7, 2008, the Respondent’s adult son (Keyvan) came with them.

[3] The Applicant and Respondent jointly own a chiropractic clinic called Steeles West Union Ergonomics. Neither of the parties is a physician or a chiropractor. The Clinic hires chiropractors and other medical professionals. According to the Applicant, since the inception of the Clinic In January 2010, she has been managing and running the Clinic. In 2013, the Applicant and a third party purchased a chiropractic clinic operating under a numbered company and known as BACK2BALANCE. The Applicant says she works at one of the clinics six days a week.

[4] The Applicant asserts that they separated on May 16, 2014 and the Respondent left the matrimonial home on May 26. On May 27, she commenced this Application in which she said that on May 26, the Respondent had gone to Iran. On June 12, 2014, Stevenson J. made an order on consent that gave the Applicant temporary exclusive possession of the matrimonial home, restrained both parties from directly or indirectly dealing with any property including the Ergonomics Clinic and the BACK2BALANCE Clinic; prohibited contact between the parties unless in the presence of their lawyers; and scheduled a case conference which was held on July 16, 2014. Ms. Espinet began acting for the Respondent on June 23, 2014.

[5] The Respondent brought a motion which was originally returnable September 11, 2014 in which he asked to delete specific words from paragraphs 2 and 4 of the consent order (relating to the Clinic) and other relief. On September 3, the Respondent’s affidavit sworn August 29, 2014 was served with the Notice of Motion. Exhibit C to his affidavit is a copy of an e-mail sent by Ms. Simaei to the Applicant on July 14, 2014 which was sent to h.golchoobian5@gmail.com and has the usual proviso that it contains privileged information as well as the following message:

Hanieh – Further to our telephone call, below is a link which explains how to disable your Yahoo account.

Before you disable your Yahoo account, please make sure that you forward any e-mails from your Yahoo account that you need to your private e-mail, and thereafter disable your account immediately so that Alireza cannot access the Yahoo account anymore. Please make sure that you also update your e-mail information if you have provided your Yahoo account as a method of contact to anybody. You should disable your Yahoo account as soon as possible.

If you are having difficulties with disabling your e-mail account, Catherine can help you with this tomorrow (Tuesday).

[6] The Respondent included that communication in his affidavit in support of his evidence as to the Applicant’s conduct that he said was having a negative impact on the business. He alleged that she had disabled the business e-mail account which was “used for doctors’ invoices, purchases, etc for the clinic”.

[7] In her evidence, the Applicant said that that email account referred to in Exhibit C was her personal account that she had used to communicate with her lawyer since she retained her lawyer in May 2014. She estimated that she and her lawyer had exchanged at least 300 emails about the litigation. When she discovered that the Respondent had intercepted her Gmail account, she immediately changed the password. She also provided transcribed and translated audio recordings from the security camera which the Applicant had installed in plain sight in the reception area on June 17, 2014. She had recordings of the Respondent on August 5, 6, 8 and 11 which supported her evidence of his interception.

[8] Without waiving privilege over the e-mail, the Applicant’s evidence provides context for the email sent on July 14. Before that email, the Applicant had spoken by telephone with her lawyer and told her lawyer that she thought the Respondent was going into her personal Yahoo email account and was changing her password. She said she had created the email account when she emigrated with the following address: h.168168@yahoo.com. Her user ID for that account was “Honey Gol” and she explained its genesis. She said that while they were together, the Respondent had access to all of her telephone and email communications and he would sometimes use her Yahoo account to send messages to his children but that in 2013, he had established his own Hotmail account which she never accessed. In early July 2014 the Applicant noticed that the Respondent kept changing the password to her Yahoo account. She said that he had added his mobile number to her Yahoo account information and then he was able to re-set the password for her Yahoo account. After that occurred multiple times, she asked her lawyer about shutting down her Yahoo account so that the Respondent could not continue to do that. The email from her lawyer contained instructions to enable her to do so.

[9] The Applicant also said that she had not altered the Clinic’s email account which is steeleswest.unionergonomics@gmail.com.

[10] In August, the Applicant realized that the Respondent had intercepted her personal and privileged email communications by going into her personal Gmail account. Ms. Simaei wrote letters to Ms. Espinet about whether solicitor-client privilege between Ms. Simaei and the Applicant had been breached and about the Respondent’s interception and recording of her private communications and conversations. Ms. Espinet did not respond to those letters.

[11] In his affidavit sworn October 16, 2014, the Respondent explained how he had accessed the Yahoo account, namely that the Clinic operated both a Gmail and a Yahoo account; that he browsed first to www.google.com and then clicked on the word “Gmail” intending to open the Clinic’s Gmail account. He said it was not obvious which one was active and he just clicked on “Gmail”. He said he assumed it was the business account. He saw the subject line as “Golchoobian – disabling your Yahoo account” and he clicked on it and read the message, assuming it was a business message. He said that he saw two other emails, one from his wife’s lawyer and one concerning the Clinic visa card. He said it was only after he saw the third message that he realized that the Gmail account was in fact his wife’s personal account and he closed the screen right away. He said that he had “never, since July 29, 2014, seen any other messages from my wife’s personal account; nor have I tried to do so”.

[12] The Respondent said he printed the e-mail because it struck him as wrong that his wife would be trying to cancel or disable the Clinics’ email account. He said that on or about August 15 he had met with Ms. Espinet to discuss his case. He showed her the printout of the e-mail. He said that when Ms. Espinet asked how he came to have the e-mail in his possession, he told her that he had retrieved it by accident, from the reception desk computer at the Clinic.

[13] The Respondent also said that because of his concerns about his wife’s lawyer, he had reported her to the Law Society and had provided a copy of the e-mail to the Law Society at about the time he gave it to Ms. Espinet.

[14] In her reply affidavit sworn October 19, the Applicant confirmed that in the past, the Respondent did not check the Clinic’s e-mail account; that the clinic only had the Gmail account referred to above; the Yahoo account was her personal account; that his explanation about clicking on the Gmail icon on the Clinic’s desktop computer meant that he was automatically directed to her personal Gmail account was false because, to open up one of the Gmail accounts, he would have had to select the e-mail address and, as indicated above, they were not at all similar.

[15] Ms. Espinet provided an affidavit in response to the motion that she be removed as solicitor of record. She explained what she understood were the problems that were occurring after the consent order was made and that she had brought the motion returnable September 11 to amend the consent order so that the parties could co-exist and run the jointly owned business. Her evidence was as follows:

6. During a routine meeting in mid-August, Mr. Vaghei spoke about the actions that Ms. Golchoobian was taking, which were having a negative impact on the business. As evidence of this concern, he brought to my attention an email dated Mon, Jul 14, 2014 at 7:28 PM with the subject line, “Golchoobian – disabling your Yahoo account”. The email was addressed to Hanieh Golchoobian and sent by her counsel Ms. Simaei.

7. Mr. Vaghei informed me that the email had been retrieved from the company computer. The computer is located at reception and is used to send and receive business messages. He advised that the practice in the Weston Union Ergonomics Clinic has always been for the business Gmail account to remain logged in at all time.

8. I reviewed the email, determined that it did not contain any litigation strategy and made further inquiries about the circumstances surrounding its acquisition.

9. I was told that Mr. Vaghei and his son Keyvan attended at the Ergonomic Clinic to review files and prepare for work the next day. As was his routine, Mr. Vaghei logged into the computer and began to review the email. He saw a subject, “Golchoobian – disabling your Yahoo account” and opened the message.

10. Mr. Vaghei informed me that the Yahoo account was routinely used in the operation of the business. For example, all invoices from the chiropractors working in the Ergonomic Clinic are sent to that account. In addition, the on-line banking for the business was transacted using the Yahoo account. He was concerned that disabling the account would cause significant harm to the business.

11. On 8 October 2014, during a meeting to prepare for this cross-motion, Mr. Vaghei further informed me that the subject email was retrieved from his wife’s personal Gmail account and not the business Gmail account. He told me that only after he had read the e-mail that he realized that the Gmail account that was logged on at reception was Ms. Golchoobian’s personal account and not the business account.

12. I note Ms. Simae’s allegations and complaints about my failure to respond to her repeated correspondence in August about solicitor-client privileged correspondence. Upon receiving the email of July 14th from my client, I came to the conclusion that Ms. Golchoobian was clearly acting to circumvent the Court’s order of June 12th. It appeared that her lawyer was assisting or counselling her in that effort.

13. Furthermore, this email, while it is solicitor-client communication, contains nothing of substance about the litigation strategy in this matter. Indeed, the only substance of this email appears to be the circumvention of the Court’s order.

14. As a result, I believed that the best course of action was to advise the Court, and allow the Court to decide what is the appropriate use of the e-mail. With the instructions of my client, I included it in his affidavit of August 29, 2014. I verily believe that I did so properly and consistent with my duties as an officer of the Court. I do not believe that acting in what I consider to be the interests of my client constitutes a reason for my removal as his solicitor of record.

15. In relation to the purported concerns expressed by Ms. Golchoobian and her counsel about my “interception” of their correspondence – or indeed any communication of the Applicant – I categorically state that I have never done, nor have I come into any possession of any such communication. The only correspondence which I have is the aforementioned e-mail of July 14, 2014.

Analysis

[16] At the outset of the motion, Ms. Simaei made a preliminary objection to paragraphs 12 and 13 of Ms. Espinet’s affidavit in that they contained an inference that Ms. Simaei had breached the consent order dated June 12, 2014 and that, if that inference was relevant to the motion as to whether Ms. Espinet would be removed as counsel, Ms. Simaei wanted to adjourn to provide a responding affidavit. I indicated that I would not make a ruling that Ms. Espinet’s affidavit caused me to find that Ms. Simaei had breached the consent order.

[17] Both counsel referred to authorities on the issue of breach of solicitor client communications[^1] which must be applied to the facts presented.

[18] In her affidavit, Ms. Espinet provided an explanation. She received from her client an email that was clearly from the Applicant’s lawyer to the Applicant which contained the usual caution to the reader that it contained solicitor client information. She asked her client how he had acquired it. In August he gave her an explanation that included his assertion that it had been sent to the business email address. In October he told her that it was from his wife’s personal email account. The difference between what he told her in August and what he told her in October will be relevant to the motion to be heard on January 5. But the evidence before me is that Ms. Espinet received what on its face was a solicitor client communication; questioned her client about how he came to have it and was satisfied with the August explanation; upon reviewing the contents, concluded that it was not a question of litigation strategy[^2]; accepted the August assertion of her client that this email contributed to his belief that his wife’s conduct was having a negative impact on the business; and included it in the affidavit so that the court could consider its implications. She received no other solicitor client communications. The evidence of Ms. Espinet is not challenged or contradicted. I accept her explanation. There is no aspect of Ms. Espinet’s conduct that warrants this court removing her as solicitor for the Respondent or imposing sanctions on her.

[19] As I indicated above, Ms. Simaei raised a preliminary objection to some of the contents of Ms. Espinet’s affidavit. I ruled that as a result of hearing this aspect of the motion, I would not reach a conclusion that Ms. Simaei had breached the consent order dated June 12. I do conclude that there is no aspect of Ms. Simaei’s conduct that warrants any inference that she did not conduct herself in any way other than as an officer of the court. It is increasingly routine that at the outset of a retainer, lawyers encourage clients to modify their online behavior and ensure that the client has control of electronic communications. The Applicant brought to Ms. Simaei her concerns and the reasons for her concerns. Ms. Simaei’s advice was in keeping with the advice that any well-informed solicitor would give. The Applicant presented to her a serious issue that she believed that her personal email was being intercepted by her husband. Ms. Simaei gave her advice as to how to prevent that from happening.

[20] There are many issues in the Respondent’s motion and in the Applicant’s cross-motion. The only matter heard on October 23rd was whether Ms. Espinet should be removed as counsel for the Respondent (or sanctions be imposed against her) on account of Ms. Espinet’s conduct and I do not make an order for removal. The balance of the motions is set to be heard on January 5, 2015. On that occasion, as indicated in paragraph 10 of the original and the amended Notice of Motion, counsel for the Applicant will ask that Ms. Espinet be removed as counsel on account of the Respondent’s conduct.

[21] At the conclusion of submissions, counsel advised that they had not agreed as to costs. I will not invite submissions as to costs on this aspect of the motion. There remains a possibility that Ms. Espinet will be removed as counsel for the Respondent because of the Respondent’s conduct. Had time permitted, I would have dealt with both aspects of the motion on October 23rd. But that was not the case. I will receive submissions as to costs on this aspect of the motion after I decide the outcome of paragraph 10 of the original and amended Notice of Motion.

[22] The request for orders contained in paragraphs 20 to 23 of the motion brought by the Applicant is dismissed.

Kiteley J.

Released: December 19, 2014

COURT FILE NO.: FS-00395074

DATE: 20141219

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Hanieh Golchoobian

Applicant

– and –

Alireza Vaghei

Respondent

REASONS FOR JUDGMENT

Kiteley J.

Released: December 19, 2014

[^1]: Celanese Canada Inc. v. Murray Demolition Corp. 2006 SCC 36, [2006] 2 S.C.R. 189; Nova Growth Corp. v Kepinski [2001] O.J. No. 5993; Chan v Dynasty Executive Suites Ltd. [2006] O.J. No. 2877

[^2]: For purposes of this aspect of the motion, I need not decide whether it did contain litigation strategy. What is relevant at this time is that Ms. Espinet concluded that it did not.