Court File and Parties

COURT FILE NO.: 05-162/16 DATE: 20170301 SUPERIOR COURT OF JUSTICE – ONTARIO (ESTATES LIST)

IN THE MATTER OF THE ESTATE OF JOHANN RUBIN, also known as JAY RUBIN, Deceased

BETWEEN:

ANNIE MAYER in her capacity as an Estate Trustee of the Estate of JOHANN RUBIN and in her personal capacity Applicant

-and-

MORRIS ERIC RUBIN in his capacity as an estate trustee of the Estate of Johann Rubin and in his personal capacity, IDA RUBIN in her capacity as an estate trustee of the Estate of Johann Rubin and in her personal capacity, SARAH WERNER in her capacity as an estate trustee of the Estate of Johann Rubin and in her personal capacity, ARSANDCO INVESTMENTS LIMITED in its capacity as trustee for the Estate of Johann Rubin and in its personal capacity, FAIGY ESTHER HAMMER and THE OFFICE OF THE CHILDREN’S LAWYER Respondents

BEFORE: F.L. Myers J.

COUNSEL: William C. McDowell for the applicant Nancy J. Tourgis, Agent for Henry Juroviesky - Counsel for the Respondents, other than the Office of the Children's Lawyer and Arsandco Investments Limited in its capacity as an Estate Trustee of Johann Rubin and in its personal capacity

HEARD: February 14, 2017

Endorsement

The Motion

[1] The respondents, other than The Office of the Children’s Lawyer and Arsandco Investments Limited in its capacity as a trustee for the Estate of Johann Rubin and in its personal capacity, move for an order to prohibit the applicant’s lawyers from acting for her in this litigation on the basis of conflict of interest. [1] For the reasons that follow the motion is dismissed.

Prohibiting Lawyers from Acting

[2] Lawyers can be prohibited from acting against a person where:

a. the lawyer has received relevant confidential information from the person attributable to a lawyer client relationship; and

b. there is a risk that the lawyer will use the person’s confidential information to the prejudice of the person.

Ontario v. Chartis Insurance Company of Canada, 2017 ONCA 59 at para.33.

[3] The moving respondents seek to remove the applicant’s counsel due to the risk of misuse of confidential information provided to the applicant’s counsel’s law firm by the respondents’ lawyer well before the applicant retained her counsel.

[4] I note that the applicant’s lawyer of record in this application is not Mr. McDowell or his firm. They are acting for the applicant for this motion only.

The Facts

[5] The respondent Ida Rubin is the mother of all of the other individual parties. This litigation involves allegations by the applicant daughter that her siblings and mother have improperly administered the estate of their late father.

[6] Approximately 18 months before the applicant commenced this proceeding, she had different counsel who was communicating with the respondents’ counsel Mr. Henry Juroviesky. An issue arose concerning the capacity of Ida Rubin to manage her own financial affairs and to function as an estate trustee of her late husband’s estate. The applicant’s counsel suggested that the applicant might try to involve the Public Guardian and Trustee to act as guardian of her mother’s property.

[7] During these discussions and in the course of providing advice to the respondents, Mr. Juroviesky sought an opinion on US tax law. He learned that the father’s estate had a US tax issue that might be affected by the degree of authority that the Public Guardian and Trustee would exercise were it to be appointed to act as the guardian of Ida Rubin’s property. Mr. Juroviesky got in touch with an Ontario estates lawyer named Mark Handelman to determine if Mr. Handelman would provide an opinion for Mr. Juroviesky concerning the powers and authority of the PGT. Mr. Handelman works in association with the applicant’s law firm.

[8] Mr. Juroviesky communicated with Mr. Handelman on a “no names” basis. Mr. Handelman was away on vacation when Mr. Juroviesky called. It appears that Mr. Handelman asked Mr. Juroviesky to send him an email with some information about the proposed retainer to allow them to discuss whether Mr. Handelman should be retained upon his return. In a two-page “no names” email dated May 5, 2015, Mr. Juroviesky set out the background facts including his clients’ and his view that Ida Rubin did not have capacity to manage her own affairs. He went on to doubt whether she had capacity in 2004 when she signed a power of attorney in favour her son the respondent Morris Rubin. Mr. Juroviesky also noted that there was a dispute between the applicant and her siblings. He wrote:

As mentioned, there has been recent sales of Real Estate with capital to be distributed. While Kids do not have hard and fast legal rights to any monies at this time, a fight ensued between one dissident sister and rest of Family. Dissident sister who truthfully has some diagnosed personality issues believes that other non immediate family members who run the business of Real Estate Holdings have secretly siphoned away money. Sister could, in theory, be right, but there is no evidence of this, and financial statements are produced every year and shared with all interested parties.

Now, dissident sister’s lawyer, experienced Estate firm (not yours) recently made demands for information, accounting etc. That threat has fizzled out I suspect because of lack of funds and energy. However, at a meeting with sister’s lawyer he made threat of calling in PG&T.

[9] Mr. Juroviesky then listed eight legal questions for which he sought Mr. Handelman’s opinion concerning whether the siblings or Mrs. Rubin had legal authority to deal with the funds in her bank accounts and concerning the possible role of the PGT.

[10] Mr. McDowell argues that there is nothing in the email that is confidential in the sense that virtually all of the facts listed would be discoverable in litigation commenced by the applicant. In addition, Mr. McDowell argues that the retainer being advanced by Mr. Juroviesky was plainly stated in his email to be a retainer on behalf of the father’s estate in relation to tax information concerning the estate and a spousal trust in which all of the children are interested parties. Mr. McDowell relies on Ontario (Attorney General) v. Ballard Estate, [1994] CarswellOnt 579 (ON SC) to argue that estate information cannot be confidential from the applicant who is an estate trustee and beneficiary. I am prepared to assume, for the sake of this motion only, that the email included some information that was confidential and privileged as between Mr. Juroviesky and his clients who were adverse in interest to the applicant by that time. If nothing else, Mr. Juroviesky’s communication of the respondent children’s views and his own view of Ida Rubin’s incapacity and Mr. Juroviesky’s views concerning the applicant and her allegations appear to be privileged information.

[11] In a subsequent email, Mr. Handelman expressed interest in moving forward with a retainer and gave some preliminary advice to Mr. Juroviesky. However, communication between the two lawyers ceased for no apparent reason. Mr. Juroviesky says the Mr. Handelman simply failed to get back to him. Accordingly, Mr. Juroviesky and the moving respondents never retained Mr. Handelman as their lawyer.

[12] The applicant’s lawyer was not yet employed by the applicant’s law firm at the time that Mr. Juroviesky sent his “no names” email to Mr. Handelman. The applicant retained her counsel sometime later. Counsel ran a conflicts search within his firm. The conflicts search did not disclose the respondents’ names because Mr. Handelman was never given their names by Mr. Juroviesky. Since nothing came of Mr. Juroviesky’s inquiry from his point of view, Mr. Handelman took no further steps.

[13] After the applicant commenced this litigation, Mr. Juroviesky raised the issue of conflict of interest. Mr. Handelman had no independent recollection of his communications with Mr. Juroviesky. Moreover he has been unable to locate the May 5, 2015 email.

[14] Mr. Juroviesky next drafted the motion record to remove the applicant’s counsel that is now before the court. The respondents’ evidence includes a full description of the purportedly confidential issues that Mr. Juroviesky had discussed with Mr. Handelman including a copy of the May 5, 2015 email. Mr. Juroviesky served the motion record on the applicant’s counsel and filed it with the court in the ordinary course. The motion record is currently in the public record and is available to all who might attend the courthouse and search the court’s files. In addition, during cross-examination of Ms. Mayer for this motion, Ms. Tourgis showed the email to Ms. Mayer and asked questions about it.

[15] The applicant says that the respondents have destroyed any confidentiality that the May 5, 2015 email may have had up to the time Mr. Juroviesky disclosed its contents. I agree. In the leading Supreme Court of Canada case on this topic, MacDonald Estate v Martin, [1990] 3 S.C.R. 1235, Mr. Justice Sopinka adverted to this very issue. In discussing the need to protect the client’s confidentiality during a motion to remove opposing counsel, Sopinka J. held that clients cannot be required to prove that their former lawyer had confidential information because “[i]n order to explore the matter in depth may require the very confidential information for which protection is sought to be revealed.” To avoid this conundrum, the Supreme Court of Canada created a rule under which all that a former client needs to do is to show that there was a previous relationship between the client and the lawyer related to the lawyer’s current, adverse retainer, and the court will then infer that confidential information was imparted to the lawyer by the former client unless the lawyer proves otherwise. Moreover, if the lawyer wants to try to prove that no confidential information was disclosed to him or her, the lawyer’s burden “must be discharged without revealing the specifics of the privileged communication.” See MacDonald Estate at pp. 1260 and 1261.

[16] This is not a case of inadvertent disclosure. Had the respondents been concerned to protect their confidentiality, their material would have consisted simply of evidence that Mr. Juroviesky contacted Mr Handelman and provided him privileged and confidential information about a retainer involving issues that have been raised or are likely to be raised in this application. They would not have disclosed their own confidential information in a public motion record. Moreover, had an inadvertent disclosure been made by Mr. Juroviesky, surely when Ms. Tourgis came on the record, the respondents would have asserted that they made an inadvertent disclosure and immediately requested the return of the motion record. Had either of those things happened, different considerations might apply. Instead, Ms. Tourgis served a summons to witness on the applicant under Rule 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194. This involved the applicant in the motion process in which she had not previously been involved as a witness. Ms. Tourgis cross-examined Ms. Mayer expressly on the purportedly confidential information. There are rules that try to catch confidential information that was inadvertently disclosed before counsel who receives it shows the information to his or her new client. Here, the respondents’ counsel went out of their way to disclose their clients’ information to the opposing client themselves. Nova Growth Corp. v. Kepinski, 2001 CarswellOnt 5814 (SC), at paras. 13 and 29; Aviaco International Leasing Inc. v. Boeing Canada Inc., [2000] O.J. No. 2420, 9 B.L.R. (3d) 99 (Ont. S.C.J.) at para. 11; Whitty v Wells, 2016 ONSC 7716.

[17] It is clear that the moving respondents have disclosed voluntarily and intentionally the very information for which they claim to seek protection. They have done precisely what Sopinka J. warned ought not to be done and they ignored the rule of law that he created to assist former clients make their case without disclosing their confidential information. Any privilege in the May 5, 2015 email has now been waived and any confidentiality lost through no wrongdoing of the applicant or her law firm.

[18] The applicant’s lawyer has not learned the respondents’ confidential information due to a conflict of interest or due to anything done by Mr. Handelman. Rather, the applicant’s lawyer had never heard of nor seen the May 5, 2015 email until Mr. Juroviesky sent it to him in the motion record. Whether the applicant’s lawyer showed the email to the applicant is not in the record. But it is clear that the respondents’ counsel did so on cross-examination. I reiterate that this is not a case of inadvertent disclosure.

[19] Accordingly, I do not have to assess whether a lawyer who receives information on a “no names” basis has a duty akin to a law firm marketing its services to a potential client as discussed in Ainsworth Electric Co. v. Alcatel Canada Wire Inc., [1998] CarswellOnt 2162 (ON SC). Nor do I have to try to balance the applicant’s right to a lawyer of her choosing against the respondents’ right to protection of their confidences in a solicitor client relationship. In light of the disclosure of the email, there is no more confidential information in the hands of the applicant’s firm and therefore there is no risk of the applicant’s lawyer illicitly using any confidential information in his firm’s possession.

[20] Therefore, the request for an order prohibiting the applicant’s counsel from acting for her is dismissed.

[21] In addition, I see no basis to order the motion record sealed in light of the outcome. Given the respondents’ disclosure of their material, there is no basis to find that they have an interest in privacy that overwhelms the public’s interest in open courts.

[22] Counsel are to attend a case conference within 14 days before me under Rule 50.13 to deal with costs and the outstanding request to seal the entire file.

F.L. Myers J.

Date: March 01, 2017

Footnote:

[1] The moving respondents also seek an order sealing the entire Court file. Ms. Tourgis advised that the moving respondents were prepared to have their motion to seal the file adjourned to a 9:30 scheduling appointment at a future date. However, in the interim, they still ask for an order sealing the motion record on the basis of privilege.