Golchoobian v. Vaghei, 2015 ONSC 1840

COURT FILE NO.: FS-14-00395074

DATE: 20150320

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hanieh Golchoobian, Applicant

AND:

Alireza Vaghei, Respondent

BEFORE: Kiteley J.

COUNSEL: Golnaz Simaei, for the Applicant

Poroshad Mahdi, for the Respondent

HEARD: January 29, 2015

ENDORSEMENT

[1] In an endorsement released December 19, 2014[^1] I disposed of paragraphs 20 to 23 of the motion by the Applicant and dismissed the claim for relief relating to Mr. Vaghei’s former lawyer. On January 29, 2015, I heard the balance of the motion, namely paragraphs 10, 12, 14, 15, 16, 17 and 19 of the Applicant’s notice of motion.

[2] Mr. Vaghei had served a motion which was originally returnable September 25, 2014. It had been adjourned in order to give priority to the motion brought on behalf of the Applicant to address the solicitor-client privilege issue. Ms. Mahdi confirmed that only paragraphs 1 and 2 were outstanding and she agreed to adjourn them sine die.

[3] The thrust of this motion is that the Applicant asserts that the Respondent deliberately violated her solicitor-client privilege for which conduct there must be severe consequences.

Background

[4] As indicated in paragraph 5 of the previous endorsement, when the motion originated in September, counsel for the Applicant challenged the inclusion by the Respondent of what was referred to as Exhibit C to his affidavit sworn August 29, 2914 which was the text of an email dated July 14, 2014 that Ms. Simaei had sent to her client at h.golchoobian5@gmail.com which had the usual proviso that it contained 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).

[5] After counsel made submissions on October 23, 2014 on the motion that Ms. Espinet be removed as solicitor of record, Ms. Simaei received from the Law Society of Upper Canada copies of three complaints made by Mr. Vaghei against her. They consisted of the following:

(a) Letter undated but received by the Law Society on September 3, 2014 signed by Mr. Vaghei attached to which was a copy of the consent order signed by Stevenson J. dated June 12, 2014, a copy of the endorsement of Stevenson J. dated June 12, 2014, a copy of the July 14, 2014 email and a copy of Ms. Simaei’s account to Ms. Golchoobian dated June 30, 2014 that contains a list of services between June 2, 2014 to June 10, 2014, and a copy of a letter from Ms. Simaei to Ms. Espinet dated August 7, 2014.

(b) Letter undated but received by the Law Society on or about September 22, 2014 which does not contain Mr. Vaghei’s signature but does have his name and refers to the earlier complaint, attached to which is a letter from Ms. Simaei to Ms. Espinet dated September 4, 2014;

(c) Letter undated but received by the Law Society on October 30, 2014 signed by Mr. Vaghei attached to which is a copy of the consent order dated June 12, 2014, paragraphs 67 to 73 of the Applicant’s affidavit sworn September 19, 2014, a copy of an email from Softmoc to Mr. Vaghei responding to his inquiry along with a 2 page enclosure dealing with the name attached to a cell phone, and a copy of the June 30, 2014 account from Ms. Simaei to Ms. Golchoobian as well as a copy of an account dated May 31, 2014 that contains a list of services between May 24, 2014 and May 31, 2014.

[6] As a result of an order I made on January 5, 2015, on January 16, 2015, Ms. Simaei questioned Mr. Vaghei in the presence of Ms. Mahdi and with the assistance of a Farsi interpreter.

Are the documents protected by solicitor-client privilege?

[7] The reasons for decision by Belobaba J. in Chan v. Dynasty Executive Suites Ltd.[^2] are instructive as to the basic points about solicitor-client privilege. The purpose of solicitor-client privilege is to preserve the confidentiality of information passing between lawyer and client. This privilege is “part of and fundamental to the Canadian legal system”: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445 (S.C.C.) at para. 17. This privilege must be impaired only if necessary, and even then, only minimally. Solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance: MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235 (S.C.C.) at 1244 etc.

[8] Not all communications passing between a solicitor and a client are privileged – only those that involve the seeking or giving of legal advice and that are intended to be confidential: Solosky v. Canada (1979) 1979 9 (SCC), 105 D.L.R. (3d) 745 (S.C.C.) at 752 and 758; etc.

[9] A document is no less privileged because it contains some factual information, which on its own, might not be privileged: Canadian Pacific Ltd. v. Canada (Director of Investigation & Research), [1995] O.J. No. 4148 (Ont. Gen. Div.[Commercial List]).

[10] The July 14 email was clearly a privileged communication: the Applicant feared (justifiably) that the Respondent had had access to her personal email address through which she had exchanged hundreds of emails with her lawyer in the proceeding in which she was engaged with the Respondent. In order to protect the sanctity of those communications, she asked and Ms. Simaei responded by advising how she could go about accomplishing the privacy that is essential to solicitor-client communications. Part of the July 14 email is factual but, in the context in which the Applicant sought legal advice and Ms. Simaei gave legal advice, the communication is clearly privileged.

[11] As for the accounts dated May 31 and June 30, 2014, Ms. Mahdi took the position that they were confidential but not privileged in that they do not show the nature of the advice given and do not reveal litigation strategy. I disagree. The contents of the accounts are clearly privileged in that they lists the dates of communications, services rendered in the context of Ms. Simaei advising the Applicant in the legal proceedings, and identifies subject matters which were the subject of their communications.

Did the Respondent deliberately breach the Applicant’s solicitor-client privilege?

[12] Based on the evidence relied on by the Applicant and the transcript of the questioning on January 16, 2015, it is clear that:

(a) the Respondent was observed through the security camera installed in an obvious location in the reception area of the clinic (where the computer was located) and he was observed deliberately accessing the Applicant’s personal email account;

(b) the Respondent was heard in audio recording telling someone information such as the Applicant’s trip to California that he would only have known by accessing the Applicant’s personal email account;

(c) in the recording, in his own words and voice, the Respondent demonstrated considerable animosity toward his wife and her lawyer from which I readily infer he had a motive to deliberately access her personal email and messages from and to her lawyer;

(d) his evidence that he accidentally accessed the Applicant’s personal email while looking at what he thought was the business email is against the weight of significant evidence to the contrary and is not credible;

(e) his evidence and the submission made by Ms. Mahdi that he accessed the invoices from Ms. Simaei through the recycle bin on the corporate email account to which he was entitled to have access has no air of reality;

(f) his evidence that his English is inadequate for him to read and understand affidavits prepared for him and signed by him is not credible; and

(g) his evidence that his son and or Ms. Espinet are responsible for putting inaccurate information in his affidavits or his letters to the Law Society does not have the ring of truth and is in fact incredible.

[13] I have no hesitation in finding that (a) the Respondent deliberately breached the Applicant’s solicitor-client privilege and (b) that he has not been truthful.

What is the appropriate remedy or sanction?

[14] In the Applicant’s Fresh as Amended Notice of Cross-Motion, she asks for the following:

(a) sanctions as the Court deems appropriate;

(b) a finding that the Respondent committed the tort of intrusion upon seclusion;

(c) an order that the Respondent delete and destroy any communications between the Applicant and any individual other than the Respondent;

(d) an order that the Respondent provide written confirmation to the Applicant’s solicitor that he has complied with the delete and destroy order;

(e) an order directing the Respondent to disclose if he has provided any of the Applicant’s communications to any other individual; and

(f) an order directing those individuals to delete and destroy the communications, and an order for costs on a full recovery basis.

[15] In my endorsement dated January 5, 2015, I indicated that the relief sought in paragraph 14(b) above was deferred to the trial judge.

[16] In response to my question about sanctions, Ms. Simaei took the position that I should order the following:

(a) a fine, penalty or monetary sanction requiring the Respondent to pay $10,000;

(b) that the Respondent should provide an affidavit attached to which are copies of every communication between Ms. Simaei and the Applicant that he has regardless of how he received them; and that provides evidence as to with whom he has shared any communication between the Applicant and Ms. Simaei;

(c) that he provide an undertaking to never directly or indirectly by any means intercept or access the Applicant’s personal email account or chat messages and that he will not record any conversations between the Applicant and any other person;

(d) that the court deliver a warning to the Respondent that if he breaches solicitor-client communication again, that higher penalties will be imposed including possibly striking his Answer and Claim.

[17] This is not a case of inadvertent disclosure of solicitor-client communication and hence the cases dealing with the consequences of receipt of such communications are not applicable.

[18] Based on my findings that the breach was deliberate and that the Respondent has not been truthful, I conclude that the Respondent’s conduct has threatened what the Supreme Court of Canada described as a fundamental aspect of the Canadian legal system. The Respondent’s conduct must be met with significant sanctions.

[19] I do not consider this to be a case where a fine or a penalty should be imposed because I am not persuaded that, if ordered, it would be paid to the Applicant as opposed to the court or to the Ministry of the Attorney General. I do agree that the Respondent should be required to provide an affidavit confirming what he has obtained (including the July 14, 2014 email and the accounts dated May31, 2014 and June 30, 2014) and any other documents that he has in his possession, power or control and confirming what he has done with all such documents. I do agree that the Respondent should be required to undertake to the court that he will not repeat such offensive behaviour.

[20] I agree that the court should deliver this warning to the Respondent:

(a) that he must be vigilant to observe the rights of the Applicant to solicitor-client privilege;

(b) that he must be compliant with the Family Law Rules and the Rules of Civil Procedure and any orders or judgments;

(c) that he remains exposed to serious consequences should he be found to violate any of the Family Law Rules or Rules of Civil Procedure or any orders or judgments;

(d) that his future transgressions may attract more serious consequences including an order that his Answer and Claim be struck and the application proceed on an uncontested basis; and

(e) that the consequences of his conduct thus far remain as a stigma throughout the proceedings.

[21] I agree that the unreasonable conduct of the Respondent means that he should be ordered to pay full indemnity costs of the entirety of the motion brought on behalf of the Applicant.

[22] At paragraph 21 of the earlier endorsement, I left open whether I would remove Ms. Espinet as counsel for the Respondent as part of this installment of the motion. She ceased to act for him shortly after the release of the earlier endorsement. Although I have found that she did not breach the Applicant’s solicitor-client privilege and therefor an order removing her as the Respondent’s counsel was not appropriate, she received from Mr. Vaghei a privileged document and he ought to be deprived of the right to choose her as his counsel in this proceeding or related proceedings in the future.

Should the documents arising from Mr. Vaghei’s complaints to the Law Society be sealed?

[23] Ms. Simaei provided to the court a copy of the three complaints referred to in paragraph 5 above. She initially did so on condition that they be sealed. I pointed out that counsel was not in a position to impose such a condition on documents provided to the court in the course of a motion but that I would consider the request in due course.

[24] At the conclusion of submissions, Ms. Mahdi advised that she consented to a sealing order and in fact, she returned to Ms. Simaei the copies of the three complaints that Ms. Simaei had provided to her.

[25] I agree that it is in the interests of justice that the three complaints not be part of the public record. They were sent to Ms. Simaei as part of the Law Society regulatory process. They revealed that during the period of September and October 2014 when Mr. Vaghei was insisting in this court that he had done nothing wrong and that when he obtained the email dated July 14, 2014 it was an innocent retrieval from what he said he thought was the business email address and not his wife’s personal address, that he was not telling the truth because he had possession of the accounts for services rendered. That revelation underscored the concern raised by the production of the July 14 email and reinforced the necessity to pursue the motion vis-à-vis Mr. Vaghei. Ms. Simaei had no obligation to disclose communications from the Law Society. However, I infer that she took the most professional approach by deliberately disclosing the contents of the complaints in order to better protect her client.

[26] The copies of the three complaints are available in the files of the Law Society and in Ms. Simaei’s file. The three complaint letters do not need to be in the court file. If required for future reference, hey can be obtained from either the Law Society or Ms. Simaei.

[27] During the oral submissions, having been handed three separate documents, I insisted that the pages be numbered and Ms. Simaei and Ms. Mahdi and I each inserted page numbers ending at 24. I see no need to retain these documents in the court file and I will arrange for the 24 pages to be shredded. As a consequence of Ms. Simaei acting as a professional and an officer of the court, she ought not to be concerned in the future that such documents will be released to any member of the public.

Striking out portions of Respondent’s affidavit sworn August 29, 2014

[28] In the Applicant’s notice of motion, she seeks to strike out Exhibit D, F and L and paragraphs 30, 40 and 53 of the Respondent’s affidavit sworn August 29, 2014 because they contain references to statements and discussions at the case conference held on July 16, 2014. Ms. Mahdi made no submissions on the point. I agree that they ought to be struck out.

ORDER TO GO AS FOLLOWS:

[29] This Court declares that the Respondent Alireza Vaghei deliberately accessed the personal email account of the Applicant and deliberately looked at and printed communications that are protected by solicitor-client privilege.

[30] By April 2, 2015, the Respondent shall serve but not file an affidavit: attached to which are copies of every communication between Ms. Simaei and the Applicant that he has regardless of how he received them; and that provides evidence as to with whom he has shared any communication between Ms. Simaei and the Applicant.

[31] By April 2, 2015, the Respondent shall serve and file an undertaking to the Court on the following terms:

(a) that he undertakes never to directly or indirectly by any means intercept or access the personal email account or accounts or chat messages of the Applicant;

(b) that he undertakes that he will not record any conversations between the Applicant and any other person;

(c) that he undertakes that he will, for the duration of this application or any proceeding in which any commercial or matrimonial issue involves the Applicant, comply promptly with the Family Law Rules, the Rules of Civil Procedure and any orders or judgments made by the Court.

[32] The Respondent is prohibited from retaining Thora Espinet in this application or in any proceeding in which any commercial or matrimonial issue involves the Applicant.

[33] The Respondent shall pay to the Applicant full indemnity costs of the motions brought by the Applicant originally returnable on September 25, 2014 and all adjournments and attendances including the motion heard on January 5, 2015 on the following basis:

(a) by April 3, 2015, counsel for the Applicant shall serve and file submissions as to costs not exceeding 3 pages plus costs outline plus offers to settle if any;

(b) by April 10, 2015, counsel for the Respondent shall serve and file responding submissions not exceeding 3 pages.

[34] Paragraphs 30, 40 and 53 and Exhibits D, F and L of the affidavit of the Respondent sworn August 29, 2014 shall be struck from the court file. By April 10, 2015, counsel for the Respondent shall arrange for the removal of the exhibits and the redaction of the paragraphs in the court file.

Kiteley J.

Date: March 2015

[^1]: 2014 ONSC 7370

[^2]: [2006] O.J. No. 2877 at paragraphs 20 – 22