Court File and Parties

COURT FILE NO.: FS-16-00409757 DATE: 20161018 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Eleanor Marie Norrie McCain, Applicant AND: Jeffrey James Melanson, Respondent

BEFORE: Kiteley J.

COUNSEL: Gavin MacKenzie, Donald Jack, and Jacqueline M. Mills for the Applicant Jonathan Lisus and Paul Michell for Harold Niman and Niman Gelgoot & Associates LL.P. Nadia Marotta for Dr. Douglas Weir

HEARD: September 28, 2016

Endorsement

[1] This is a motion by the Applicant for an order disqualifying Harold Niman and the law firm Niman Gelgoot & Associates (collectively, “Niman”) from continuing to act as counsel to the Respondent, Jeffrey Melanson. The Respondent did not participate in this motion. Dr. Douglas Weir is an affected non-party. Counsel on behalf of Niman brought a motion to strike certain evidence led on behalf of the Applicant and counsel for Dr. Weir made written and oral submissions supporting one aspect of that motion but she did not otherwise participate in the motion.

[2] For the reasons that follow, the motion to disqualify is dismissed and the motion to strike is allowed.

Background

[3] On April 24, 2014, the Applicant and Respondent entered into a Marriage Agreement. They were married in a private ceremony on April 26, 2014 and held a public ceremony on November 22, 2014.

[4] The parties separated in January 2015 and each party retained counsel, namely Jacqueline Mills for the Applicant and D. Smith for the Respondent, and counsel engaged in negotiations.

Application on behalf of McCain

[5] On March 2, 2016, an Application was commenced in this court in which she seeks an annulment, and, if the Application was defended, she claimed costs. The following is taken from the “overview” section of the 36 page Application.

3. As hereinafter particularized, Jeff lied to Eleanor, deliberately misrepresented himself to her and tricked Eleanor into going through a ceremony of marriage in April, 2014.

4. Eleanor seeks an annulment of the marriage. Eleanor states that she is entitled to an annulment under the Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14.

5. Eleanor further states that under the Civil Marriage Act, S.C. 2005, c. 33 marriage requires the free and enlightened consent of two persons to be the spouses of each other. Eleanor states that, since Jeff lied to her, deliberately misrepresented himself to her and tricked her into going through a ceremony of marriage with him, she did not give her free and enlightened consent to be married to him. Had she known the truth about Jeff, she never would have married him.

6. Eleanor respectfully asks that an annulment be granted so that she may treat the marriage she was tricked into with Jeff as if it never existed.

[6] Paragraphs 7 to 33 include the “particulars of Jeff’s deceitful treatment of Eleanor” under these headings:

Jeff Seeks Out Eleanor Jeff Relentlessly Courts Eleanor Jeff Insists on an Early Wedding and Leaves TBC (The Banff Centre) in the Lurch Jeff and Eleanor Undergo a Ceremony of Marriage Jeff Abruptly Terminates the Marriage Jeff Deliberately Misrepresented Himself to Eleanor and Thereby Induced Her into Marrying Him (which is followed by 10 detailed paragraphs).

[7] The Application contains no reference to the Marriage Agreement.

[8] The Application was served on March 8. On March 24, 2016, the Respondent retained Niman. On April 1, 2016, the Applicant’s counsel advised that she was considering whether to object to the retainer. Pursuant to the order of Corbett J. dated April 26, 2016, the Answer and Claim was filed on April 27. In the Answer there are 11 pages that respond to the allegations in the Application and the Answer also includes allegations against the Applicant. In the Claim, the Respondent asked for a divorce, and for an order that the Marriage Agreement dated April 24, 2014 be enforced, along with costs and prejudgment interest.

[9] In her Reply filed May 6, 2016 the Applicant took the position that section 9.11 of the Marriage Agreement contemplated that the marriage might be annulled. She asserted that the Respondent was not entitled to the $5million payment set out in s. 4.2 or to any other pecuniary benefit because he had “disqualified himself through the misrepresentations made to Eleanor”. She also claimed that pursuant s. 56(4)(c) of the Family Law Act, the Marriage Agreement should be set aside. In the alternative she claimed that if the court was “inclined to consider Jeff’s claim to the $5million or other pecuniary benefits”, she sought an order for the “immediate repayment/recovery of same as restitution for unjust enrichment and as damages for deceit and civil fraud”. She asserted that the Respondent had “breached his duty of utmost good faith” and “deliberately misrepresented himself when entering into the Marriage Agreement. There is no juristic reason for any pecuniary benefit under the Marriage Agreement to be paid to or retained by Jeff”. Paragraphs 14 to 87 are described as particulars of the Respondent’s misrepresentations and the assertion that “Jeff is attempting to use these misrepresentations to divert attention away from his own unconscionable behavior”. In her Answer to his Claim, she did not agree with any of the claims made by the Respondent.

[10] To say that the Applicant and Respondent have different perspectives on the relationship is an understatement. Be that as it may, the legal issues raised in these proceedings are as follows:

Claimed by the Applicant

• annulment of the marriage conducted on April 26, 2014
• set aside the Marriage Agreement pursuant to s. 56(4)(c)
• restitution for unjust enrichment
• damages for deceit and civil fraud

Claimed by the Respondent

• divorce (grounds not specified)
• enforcement of the Marriage Agreement
• pre-judgment interest.

[11] In addition, both parties claim costs.

[12] On June 3, 2016, Glustein J. held the initial case conference and established a timetable for the hearing of this removal motion (including the associated admissibility issues) which he scheduled for September 19, 2016 as well as the Respondent’s summary judgment motion which he directed be heard by December 31, 2016. He also granted leave to the Respondent to bring a motion for interim disbursements.

A. Motion to disqualify Niman

[13] On May 4, 2016, the notice of motion and affidavit of the Applicant sworn May 4, 2016 were served. The relief sought is an order disqualifying Harold Niman and Niman Gelgoot & Associates LLP from acting as counsel for the Respondent and costs. Mr. Niman’s affidavit was sworn May 30, 2016 as was the Respondent’s affidavit. The Applicant’s reply evidence consisted of the affidavit of Andrea Van de Velde sworn June 8, 2016 and the Applicant’s affidavit sworn June 10, 2016. Mr. Niman was questioned on August 2, 2016 and the Respondent on July 25, 2016 and transcripts were provided.

[14] The following is taken from the “overview” section of the factum filed on behalf of the Applicant:

2. Over the past 12 years, Niman has consistently and repeatedly acted against Ms. McCain and her family in contentious family law disputes. By virtue of his previous solicitor-client relationships in relation to Ms. McCain, Niman has obtained a great deal of relevant confidential information of a highly personal nature, including sensitive information disclosed by Ms. McCain to various therapists, mediators, and parenting coordinators in confidence over the course of lengthy custody and access proceedings with her former spouse, Greg David. Niman also obtained confidential information relevant to this matter when acting against two of Ms. McCain’s siblings in similar disputes respecting contested marriage contracts. The Respondent has not challenged Ms. McCain’s evidence regarding the significant confidential information imparted to Niman.

3. In light of the extensive relevant personal and confidential information known to Niman, there is a real risk of prejudice to Ms. McCain if Niman is permitted to continue to act for Mr. Melanson against her. This court and appellate courts across Canada have on numerous occasions disqualified counsel from acting because counsel had received the opposing party’s confidential information in circumstances creating an expectation of confidentiality – without ever having a solicitor-client relationship with that party. The risk of prejudice is especially pronounced in family law matters, where clients are at their most vulnerable, and the confidential information imparted for the purpose of resolving the matter is directly personal and particularly sensitive.

4. In addition to the risk of prejudice to Ms. McCain arising from Niman’s knowledge of her confidential information, the circumstances in which Niman was retained also raise real concerns of unfairness that would unacceptably diminish public confidence in the integrity of the justice system if he is permitted to continue to act. Mr. Melanson had previously been represented by experienced and well-respected counsel in this proceeding, but he switched counsel and retained Niman knowing how much Niman’s involvement would intimidate and cause distress to Ms. McCain. Mr. Melanson has long known of Ms. McCain’s and her family’s acrimonious history with Niman. When Mr. Melanson’s former spouse retained Niman to act against him during his marriage to Ms. McCain, Mr. Melanson saw Niman’s involvement as a “sickening” ploy to “target [Ms. McCain’s] family, recognizing that Niman would “bring a nightmare into [Ms. McCain’s] life.”

5. The respondents allege this is a tactical motion. On the contrary, it was Mr. Melanson’s decision to switch counsel that was tactical. Mr. Melanson has offered no plausible reason for switching from a well-respected lawyer with whom he was content to a new lawyer with 12 years’ worth of confidential information from Ms. McCain, and whom he has acknowledged would “bring a nightmare into [Ms. McCain’s] life”.

6. Particularly in matrimonial litigation, a litigant’s decision to retain counsel who has obtained extensive relevant confidential information about the opposing party, and who was retained for tactical reasons, ought not be countenanced by this Court. Public confidence in the integrity of the legal profession and the administration of justice requires disqualification of Niman as counsel for Mr. Melanson in this proceeding. (emphasis added)

B. Analysis

[15] Counsel have referred extensively to the authorities which largely relate to circumstances where the motion to disqualify is brought by a former client or a “near client”. None of the authorities relied on by either counsel directly relate to the circumstances of this case. I do not need to refer to the extensive authorities provided by counsel but I will be guided by the principles applicable on which counsel generally agree.

[16] In MacDonald Estate v. Martin [1] the Supreme Court established a two-step test governing the removal of a lawyer or law firm for breach of a lawyer’s duty of confidence:

(a) did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (b) is there a risk that it will be used to the prejudice of the client.

[17] Counsel agree that that two step test applies to circumstances in which the moving party was a client in the course of a solicitor-client relationship and to situations in which the lawyer received relevant confidential information from a non-client.

[18] The Supreme Court recognized that a party seeking to disqualify a law firm from acting on the basis of an alleged breach of confidence should not be required to place the information said to be confidential in the public record. Accordingly, a litigant seeking to disqualify a law firm from acting on the basis of the law firm’s possession of relevant confidential information may show one of these two things:

(a) that the current retainer and previous retainer are sufficiently related, generating a presumption that the law firm possesses relevant confidential information; or (b) that the law firm actually possesses relevant confidential information.

[19] In Celanese Canada Inc. v. Murray Demolition Corp. [2], the Supreme Court addressed the issue as to whether there needed to be a previous solicitor-client relationship in a case in which the two law firms were disqualified from continuing to act on the basis that they had obtained confidential information through the execution of an Anton Pillar order. The court held that a solicitor-client relationship with the opposing party whose confidential information they had been obtained was not a pre-requisite:

The relevant elements of the MacDonald Estate analysis do not depend on a pre-existing solicitor-client relationship. The gravamen of the problem here is the possession by opposing solicitors of relevant and confidential information attributable to a solicitor-client relationship to which they have no claim of right whatsoever.

[20] Counsel who seeks to establish a presumption that the Applicant gave confidential information bears the onus under the first step of the MacDonald Estate test and according to the Ontario Court of Appeal in Chapters Inc. v. Davies, Ward & Beck LL.P. [3] she must adduce clear and cogent evidence, not mere assertions, to show that a previous retainer is sufficiently related to the current retainer. Furthermore the moving party must show that the possibility of relevant confidential information having been acquired by the law firm is realistic, not just theoretical. The court must carefully review and compare the retainers to determine whether they are sufficiently related.

[21] The moving party must provide evidence of a “sufficient relationship” in which allegedly confidential information obtained by the law firm under the previous retainer could be used against the former client in the current retainer and in some tangible manner. [4]

[22] As the court held in Paylove v. Paylove [5], “confidential information” is information one would not voluntarily reveal to an opposing lawyer and, in the family law context would extend to the personal habits, faults and foibles of the “client”, knowledge of which might be valuable to the lawyer in the adversarial world of litigation.

With respect to the David v. McCain proceeding, has the Applicant established a “sufficient relationship”?

[23] The factum on behalf of the Applicant did not include an analysis as to how the prior proceedings in which the Applicant was adverse to Niman’s client constituted a “sufficient relationship” to this proceeding in which she is again adverse to Niman’s client. The evidence filed on behalf of the Applicant did not include a copy of the pleadings in the prior case and a brief was provided to the court during submissions by counsel for the Applicant to which counsel for Niman objected. Since it is an essential element of the motion before me, I received the brief of pleadings and gave both counsel an opportunity to make submissions.

[24] Ms. McCain and Mr. David were married on September 18, 1999 and separated on August 11, 2004. Following the separation, the parents attempted to implement a parenting plan and had attended mediation with Dr. Irving. When mediation did not lead to an agreement, the parties consented to an assessment pursuant to s. 30 of the Children’s Law Reform Act by Dr. Douglas Weir who delivered a report dated May 24, 2005. In June 2005, an Application [05-FA-13559FIS] was issued against Ms. McCain in which Mr. David asked for custody or access with respect to their daughter who was then 3 years old. According to the Application, Dr. Weir had attempted to mediate the implementation of a parenting plan prior to issuing his final report. The Application contains allegations with respect to his parenting, Ms. McCain’s parenting and the challenges he saw in continuing to maintain his relationship with his daughter. Mr. David asked for an order implementing Dr. Weir’s recommendations. The Answer and Claim are dated August 11, 2005 and include Ms. McCain’s position that she was the primary caregiver, that she had always encouraged the father-daughter relationship, and her position with respect to the assessment reports by Dr. Weir which she said indicated that he had “gone off on a frolic of his own”. Ms. McCain asked for an order for sole custody and retroactive and ongoing child support. Mr. David’s Reply is dated February 7, 2006. In the fall of 2005, Niman brought a motion on behalf of Mr. David in reliance on Dr. Weir’s s.30 report, seeking an order to change the de facto parenting arrangements and replace it with an order that Mr. David have interim custody of the child. The motion was argued on November 28, 2005 and was dismissed on December 9, 2005.

[25] According to the Applicant in the proceeding before me, that 05-FA-13559FIS proceeding has continued for 12 years with Mr. Niman personally or someone in his firm acting for Mr. David. Niman agreed that he had acted for Mr. David since 2004 but he pointed out that it was not a consecutive retainer, from which I understood him to mean that it was not continuous throughout all those years.

[26] At paragraph 40 of the factum, counsel asserted that the Applicant had disclosed a considerable amount of personal and confidential information to Niman through meetings with therapists, parenting coordinators and mediators including Ms. Pomerantz, Dr. Irving, Dr. Weir, Dr. Radovanovic and Dr. Butkowski

all of whom reported to the parties’ counsel. These meetings required Ms. McCain “to work in an environment of open and honest cooperation” to determine custody and access arrangements in the best interests of her child. Ms. McCain had understood that the sensitive personal information she provided in these meetings was disclosed in secrecy, not to be used except for the purposes of the custody and access arrangements at issue. By virtue of his solicitor-client relationship with Mr. David, Niman obtained a great deal of relevant confidential information about Ms. McCain. As in Metro, failing to recognize Niman’s relationship with Ms. McCain as giving rise to a conflict of interest would run the risk of encouraging parents to be reserved and guarded in attempts at settlement of custody and access arrangements, and to refrain from disclosing any information in such meetings unless absolutely necessary – to the detriment of their children’s best interests.

[27] Central to the position taken by the Applicant on the disqualification motion is the role of Dr. Weir. As indicated above, on behalf of Mr. David, Niman relied on the May 24, 2005 report in the motion for an interim order. In the course of deciding that motion and costs, the motions judge found the report to be an unreliable basis upon which to change the status quo. As indicated at paragraph 64 of the factum, counsel on behalf of the Applicant pointed out that in the present proceeding, the Respondent has pleaded that Ms. McCain is a “vengeful, angry person” with “incredible amounts of rage” and that, in light of such allegations, the sensitive personal and confidential information Ms. McCain “imparted to Niman through these meetings is directly relevant to this matter”. In particular it is asserted that the hundreds of pages of Dr. Weir’s confidential notes could be used against her in this proceeding.

[28] I am not persuaded that the Applicant has met the onus of establishing that a “sufficient relationship” occurred between the Applicant and Mr. Niman or his firm for these reasons.

[29] First, it is clear that the legal issues in that 05-FS-13559FIS proceeding are unrelated to the legal issues in this proceeding as described in paragraph 10 above: different parties; different legal issues; different factual issues.

[30] Second, the central role that the Applicant asserts the report(s) of Dr. Weir will take in the proceeding before me is conjecture or theoretical but not realistic. She has provided no evidence that the Respondent or his counsel intends to do so. She insists that the fact that in his questioning Niman did not answer the question as to whether he intended to rely on the Weir report(s) means that the court should infer that he will do so. I do not agree that that inference can or should be drawn. In this motion, the Applicant introduced the topic of Dr. Weir absent any evidence of any threat, let alone any suggestion, that the Respondent or his counsel would bring it into these legal proceedings. In any event, on the record before me, I see no prospect that anything a psychiatrist said over 11 years ago about the Applicant’s parenting capacity could be relevant to whether she can prove her allegations of misrepresentation and deceit. The fact that Dr. Weir made reference to a personal characteristic such as anger in the context of a s. 30 assessment does not mean that it is realistic that such references or excerpts from Dr. Weir’s notes will be found relevant to the allegations in the Answer as to the Applicant’s anger.

[31] Third, where the Applicant was always adverse to Mr. David and adverse to his lawyer, I find it difficult to accept that the communications she made to other professionals which “became known to Mr. Niman” could constitute a “sufficient relationship”. [6] She does not allege that she gave any confidential information to Mr. Niman; rather, she alleges that what she said to others was communicated to him. No doubt what Mr. David said to those same others may have become known to her counsel. The information that she says she communicated indirectly is not in the category of “confidential information attributable to a solicitor client relationship to which they have no claim of right whatsoever”. Niman had the right to receive the information that he received indirectly. I do not accept that such information as she communicated to those professionals created an expectation of confidentiality that could be relied upon to disqualify the lawyer for her former spouse from acting for her current spouse.

[32] I do accept that in the context of a high conflict parenting case that has persisted for an extended period of time, that it is in the public interest and in the best interests of the child that the parties conduct themselves in a way that will yield a settlement. But the Applicant has never retained Niman. Her former husband was Niman’s client and consequently, Niman was adverse to her. Throughout that prolonged period, particularly in this high conflict case, the parents have clearly been adverse as is demonstrated by what counsel describes as “Niman’s previous use of erroneous and hurtful allegations against Ms. McCain”.

With respect to claims involving her brothers, has the Applicant established a “sufficient relationship”?

[33] Counsel for the Applicant additionally takes the position that Niman should be disqualified because he has acted against McCain’s brothers. In an effort to establish a sufficient relationship, the Applicant’s evidence is that Niman acted against two of her siblings, Scott and Michael in their respective “matrimonial proceedings” in which Niman, on behalf of each of their spouses, challenged the enforceability of a marriage contract.

[34] I am not persuaded that the Applicant has established that that constitutes a special relationship for these reasons. First, the Applicant was not a party to either of those matters and there is no evidence that she was involved directly or indirectly in either matter. Second, the evidence is superficial in that it includes reference to the Michael McCain matter that involved legal proceedings for which the court file was sealed for confidentiality reasons but no information about the Scott McCain matter except that it involved a challenge to the marriage contract. Third, the fact that the enforceability of a marriage contract was in issue in the siblings’ cases does not make it similar to these proceedings where it is the Respondent who seeks to enforce the Marriage Agreement while the Applicant takes the position in her Reply that it is not enforceable.

[35] The Applicant has provided no evidence as to the extent to which the issues in those matters bear any relationship to the issues in the matter before me. It may be that as a result of acting for the wives of her two brothers Niman received financial information about Michael and Scott McCain that might be related to the Applicant. But that does not meet the burden of “sufficient relationship”.

With respect to legal proceedings by Melanson’s former wife, has the Applicant established a “sufficient relationship”?

[36] In a related submission, counsel for the Applicant takes the position that Niman should be disqualified because he had acted against Melanson when he accepted the retainer of Melanson’s former wife. The Applicant’s evidence with respect to that retainer is sparse but on all of the evidence in this motion, it appears that the Applicant was not involved in that proceeding. In any event, Melanson’s former wife, who has the legal right to object, has waived her right to challenge the retainer. The Applicant has not established a sufficient relationship in regard to those proceedings.

Has the Applicant established that Niman actually possesses relevant confidential information?

[37] Counsel concentrated on the submission that the Applicant had established a presumption that she gave confidential information to Niman during the course of the David v McCain litigation (or the disputes between her brothers and their ex-spouses or the dispute between Melanson and his former wife). Having failed to fulfill the burden of proof of a “sufficient relationship” in respect of any of them, the Applicant is not entitled to the benefit of the presumption.

[38] In response to my question, Mr. MacKenzie conceded that if I was not persuaded on that issue, that he had led no evidence on which I could find that Niman actually possessed relevant confidential information and accordingly the motion to disqualify Niman fails.

Applicant’s submission that the Respondent allegedly retained Niman to intimidate her

[39] The last submission is that Niman should be disqualified on account of the Respondent’s alleged conduct in retaining Niman. The Applicant asserts that the Respondent has offered no plausible reason for switching from a well-respected lawyer with whom he was content to a new lawyer with 12 years’ worth of confidential information from Ms. McCain, and whom he has acknowledged would “bring a nightmare into [Ms. McCain’s] life”.

[40] I disagree. The Respondent has no obligation to offer any reason for switching, let alone a “plausible” reason. A party has the right to choice of counsel. He did not have to give any explanation for the change but he did: once negotiations ended and litigation commenced, he wanted a lawyer with different skills.

[41] It is the case that shortly after their wedding ceremony the Respondent exchanged text communications with the Applicant that were critical of his former wife for having retained Niman in their legal matter and that those communications demonstrated his understanding that his former wife’s choice of Niman was “sickening” and would “bring a nightmare into [Ms. McCain’s] life”. But that does not mean that the Respondent is deprived of his right to choose that same counsel, so long as his former wife agreed. The Applicant also asserts that by choosing Niman, the Respondent intended to intimidate the Applicant. In the context of the aggressive Application and the equally as aggressive disqualification motion, that assertion (which is denied by the Respondent) is not realistic because her actions do not demonstrate that she is intimidated. I do not accept the submission that the Respondent’s retainer of Niman raises concerns of unfairness nor that any aspect of public confidence in the integrity of the justice system is engaged.

B. Motion by Niman to strike

[42] In his notice of motion, Niman seeks to strike two categories of documents and evidence. The first is what is alleged to be a settlement privileged letter attached as Exhibit I to the May 4, 2016 affidavit of the Applicant as well as the affidavit of Van de Velde, particularly Exhibits D, F, G, H, I, J and N. The second category relates to documents and evidence arising from the complaint that the Applicant made to the College of Physicians and Surgeons with respect to Dr. Weir.

[43] At the outset of the motion, counsel advised that they had agreed that they would make submissions on the disqualification motion and leave submissions on the motion to strike to the end of the day.

Are the documents in the category of settlement privilege?

[44] In the notice of motion, counsel for Niman seeks to strike the following:

(a) in the affidavit of the Applicant sworn May 4, 2016: Exhibit I which is a letter dated July 21, 2015 in which the Respondent’s then counsel took a position with respect to the Respondent’s claim pursuant to the Marriage Agreement. (b) affidavit of Van de Velde sworn June 8, 2016.

[45] Exhibit I to the May 4 affidavit is the same as Exhibit D to the June 8 affidavit. Exhibits D,F,G,H,I,J and N of the Van de Velde affidavit are letters between counsel referring to settlement. The remaining exhibits to the Van de Velde affidavit (A,B,C,E,K,L,M and O) are not specifically challenged but counsel seeks to strike the entire affidavit.

[46] The Applicant argues that the evidence is relevant to the disqualification motion because it shows the significant work Ms. Smith had conducted in her representation of the Respondent which the Applicant asserts is relevant to his choice of counsel. In submissions, Mr. Jack added that the settlement communications between counsel were relevant to the claim for an annulment and the claim to enforce the Marriage Agreement which was a contract “uberrimae fidei” that was prefaced on the Respondent “concealing nothing”.

[47] Settlement privilege applies to a communication which meets the following test:

(a) a litigious dispute was in existence or within contemplation at the time of the communication; (b) the communication was made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and (c) the purpose of the communication was to attempt to effect a settlement. [7]

[48] The July 21, 2015 letter is not marked “without prejudice” however in reviewing all of the letters attached to the Van de Velde affidavit, it is implicit that the correspondence was exchanged with a view to achieving a settlement. Indeed, it was Mr. Jack’s letters dated July 7 (Exhibit C) and dated July 22, 2015 (Exhibit E) that made it clear that the communications were “without prejudice”. I am satisfied that all of the challenged exhibits are within the category of settlement privilege which, as a class privilege, presumptively applies, subject to being displaced by the party resisting the application of the privilege. [8]

[49] Counsel takes the position that the exhibits are not settlement privilege because settlement or compromise was not the bona fide purpose of the Respondent’s communication and because there are indicia of bad faith. [9]

[50] It is the case that the Respondent’s counsel took a position in the July 21 letter that did not ultimately lead to a written settlement agreement. But I will not draw the inference which counsel invites that that the letter dated July 21 or the exchange of communications that followed constitutes bad faith. A finding of bad faith cannot be made on the basis of bald assertions.

[51] Counsel for the Applicant makes an alternative submission that the Respondent waived any privilege he had in the letter dated July 21, 2015 because he discussed the letter with third parties. The evidence of the Respondent is that he discussed with three people the “spirit of the letter” but that he did not show the letter to others nor discuss it with others. I do not agree that his actions in exploring outcomes with as many as three people constitute a waiver of privilege in the July 21 letter.

[52] The Applicant has failed to meet the burden of establishing that settlement privilege does not apply. But had she met that burden, I would not have found the correspondence relevant to the disqualification motion in any event.

Documents and evidence concerning complaint to the College of Physicians and Surgeons of Ontario with respect to Dr. Weir

[53] As indicated above, counsel for the Applicant has described the role that Dr. Weir played in the s. 30 assessment report prepared in May 2005. In her evidence and related materials, the Applicant expresses her concern that Niman may seek to rely on the s. 30 report again in this proceeding and therefore evidence as to Dr. Weir’s role in the David v McCain proceeding as well as the complaint to the CPSO and the outcome are relevant to the disqualification motion.

[54] In her counsel’s Reply factum, it is asserted at paragraph 8 (without reference to evidence) that Niman’s continuing to act would make it inevitable that the discredited allegations in the David v. McCain litigation would be re-litigated in the present proceeding.

[55] In the notice of motion, counsel for Niman seeks to strike out the following:

(a) affidavit of McCain sworn May 4, 2016: paragraphs 21, 22, and 23 paragraph 24, in the middle of the first sentence, starting with “even though” and ending with “of the Weir report” paragraph 25, in the middle of the third sentence, starting with “and also ignored” and ending with “Dr. Weir.” Exhibit D which is a letter from the CPSO to the Applicant enclosing a copy of the decision of the Complaints Committee; (b) affidavit of McCain sworn June 10, 2016: paragraphs 5 and 6.

[56] Section 36(3) of the Regulated Health Professions Act states as follows:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

[57] Counsel for Dr. Weir took the position that her client was a “person who is affected by” this motion as provide in rule 7(2) of the Family Law Rules. Counsel for Niman agreed that Dr. Weir had standing but in his factum and submissions, counsel for the Applicant did not concede the point. I am satisfied the Dr. Weir has a legal right to seek compliance with s. 36(3) of the RHPA and has standing on that basis. Ms. Marotta limited her submissions to this narrow issue. At the conclusion of the hearing, she asked to broaden the request to strike to include all of paragraphs 24, 25 and 26, Exhibits D, F and G, as well as the passages in the Applicant’s factum on this issue.

[58] Counsel for Niman and for Dr. Weir take the position that s. 36(3) constitutes a prohibition that is absolute. Counsel for the Applicant does not agree. I do not intend to analyze the authorities to which both refer because I need not resolve the point. I am satisfied that the situation before me falls within s. 36(3). I agree that all challenged documents and evidence must be struck. Furthermore, just as I concluded in paragraph 30 above, I see no prospect that anything a psychiatrist said over 11 years ago about the Applicant’s parenting capacity, and the subsequent complaint and outcome at the CPSO could be relevant to whether she can prove her allegations of misrepresentation and deceit in this proceeding. That evidence is not relevant to the disqualification motion.

[59] In the course of the questioning of Niman in the disqualification motion counsel referred to 6 exhibits: letter dated April 10, 2006 from Mr. Niman to the Applicant’s lawyer; Dr. Weir assessment report brief (that included his s. 30 assessment report dated May 20, 2005; his Synopsis Report dated May 24, 2005; and his Addendum to Assessment Report dated June 3, 2005); two volumes of “correspondence and notes” of Dr. Weir; a letter dated April 3, 2006 from McCain’s then counsel to Mr. Niman; and a case conference brief in the David v McCain proceeding. In the hearing of this motion, counsel provided a brief that contained the transcripts of the evidence of the Respondent and of Niman as well as most of the documents that had been marked as an exhibit at questioning.

[60] In the course of conducting his s. 30 assessment Dr. Weir took notes that totaled over 200 pages which were produced to counsel at the time but not filed in court in the David v McCain proceeding. On this motion, counsel for the Applicant provided a brief that contained one volume of those notes referred to at the questioning of Niman. During his submissions, Mr. MacKenzie referred to 2 pages of those notes. At the conclusion of the hearing of these motions, it appeared that counsel for the Applicant and Respondent had agreed that the brief of those notes should be returned to counsel.

[61] Counsel ought not to file documents such as those notes on their expectation that they would be returned. However I see no reason for them to remain in the court file in this proceeding because they are not relevant and because they likely contain significant personal information of Mr. David.

Case conference

[62] Based on the endorsement made by Glustein J. dated June 3, 2016, the discussion at that initial case conference focused on a timetable for this disqualification motion. He also ordered that the Respondent’s summary judgment motion be heard by December 31, 2016 and he granted leave to the Respondent to bring a motion for interim disbursements. On the basis of that endorsement, I conclude that the parties have not yet had an opportunity to do what is expected pursuant to rule 17(a), (b) and (c) in an initial case conference, namely exploring the chances of settling the case, identifying the issues that are in dispute and those that are not in dispute; and exploring ways to resolve the issues that are in dispute. I will schedule a case conference to address those issues and to address such long motions as are appropriate, which, based on my knowledge of the availability of long motion dates, are unlikely to be heard before December 31, 2016. For those reasons, I will schedule a case conference and will do so without consulting with any of the counsel or parties on the assumption that they will all make themselves available.

ORDER TO GO AS FOLLOWS:

[63] Motion by the Applicant to disqualify Harold Niman and Niman Gelgoot & Associates LL.P. is dismissed.

[64] Motion by Niman to strike portions of the evidence is granted.

[65] As for the evidence relating to the complaint to the College of Physicians and Surgeons of Ontario with respect to Dr. Douglas Weir, within 7 days of receipt of this endorsement, counsel for the Applicant shall do the following:

(a) in the affidavit of the Applicant sworn May 4, 2016, redact paragraphs 21 – 26 and remove exhibits D, F and G; (b) in the affidavit of the Applicant sworn June 10, 2016, redact paragraphs 5 and 6; (c) in the Applicant’s factum dated August 26, 2016 responding to the motion to strike, redact paragraphs 2, 3, 20, 23, 24, 27, 50, 55, 62, 63, 64, 65, 66, 67 and 68; (d) provide to counsel for the Respondent and for Dr. Weir copies of (a), (b) and (c) that comply with this endorsement.

[66] As for the evidence relating to negotiations between counsel, within 7 days of receipt of this endorsement, counsel for the Applicant shall do the following:

(a) remove from the court file the affidavit of Andrea Van De Velde sworn June 8, 2016; (b) in the affidavit of the Applicant sworn May 4, 2016, remove Exhibit I; (c) provide to counsel for the Respondent a copy of (b) that complies with this endorsement.

[67] Within 7 days of receipt of this endorsement, counsel for the Applicant shall remove from the court file the brief of approximately 200 pages containing the notes of Dr. Weir.

[68] If by October 31, 2016, counsel have not agreed on the costs of these motions then counsel shall make written submissions not exceeding 3 pages plus costs outline and offer to settle if any, as follows:

(a) Counsel for Niman and Dr. Weir November 14, 2016 (b) Counsel for the Applicant November 28, 2016 (c) Reply by counsel for Niman and Dr. Weir December 12, 2016.

[69] Counsel and the parties shall attend a case conference before me on October 31, 2016 at 4:00 p.m. at which time the following will be included in the agenda:

(a) explore the chance of settling the case; (b) identify the issues that are in dispute and those that are not in dispute; (c) explore ways to resolve the issues that are in dispute; and (d) establish a timetable for next steps.

Kiteley J. Date: October 2016

[1] MacDonald Estate v. Martin 1990 32 (SCC) , [1990] 3 S.C.R. 1235 at para. 45

[2] Celanese Canada Inc. v. Murray Demolition Corp. , 2006 SCC 36 at para. 46

[3] Chapters Inc. v. Davies, Ward & Beck LL.P. 2001 24189 (ON CA) , [2001] O.J. No. 206 at para. 29-30

[4] Canadian National Railway Co. v. McKercher LLP , 2013 SCC 39 , [2013] S.C.J. No. 39 at para. 54

[5] Paylove v. Paylove 2001 28169 (ON SC) , [2001] O.J. No. 5009 at para. 19

[6] The circumstances in this case cannot be considered in the category of “near client cases” such as Metro Inc. v. Regroupement des Marchands Actionnaires Inc. , [2004] QJ No 11004 (CA) ; Dobbin v. Acrohelipro Global Services Inc. , 2005 NLCA 22 ; Roadrunner Apparel Inc. v. Gendis Inc. , 2006 MBCA 137

[7] Sopinka et al., Evidence (4 th ed. 2014) at 1039

[8] Sable Offshore Energy Inc. v. Ameron International Corp. , 2013 SCC 37 at para. 12

[9] Roberts v. Zoomermedia Ltd. , 2015 ONSC 1120 at para. 25