Syal v. Kumar, 2017 ONSC 7703
CITATION: Syal v. Kumar, 2017 ONSC 7703
COURT FILE NO.: FS-17-88591
DATE: 20171222
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PANKHURI SYAL, Applicant
AND:
DANIEL DEEPAK KUMAR, Respondent
BEFORE: Shaw J.
COUNSEL: Paul Rausch, for the Applicant
Leena Leva Kumar, for the Respondent
HEARD: September 22, 2017
ENDORSEMENT
ISSUE
[1] The respondent is seeking to set aside the Order of Justice Tzimas dated June 8, 2017 granting an uncontested divorce. The basis for that relief is that the respondent disputes the date of separation.
[2] The preliminary issue before the court is whether or not the file of Mr. Usman Sadiq, a lawyer, can be produced or whether it is covered by solicitor-client privilege. The applicant is seeking production of the file for the purpose of resolving the dispute regarding the date of separation.
Background
[3] The applicant and respondent were married on June 18, 2011. There is conflicting evidence with respect to the nature of their marital relationship and whether or not they ever lived together. The applicant alleges that they separated on or about July 1, 2015.
[4] The respondent has proposed various dates as the date of separation. In his affidavit sworn July 4, 2017, he deposes that the date of separation is around March 2017. In his affidavit sworn July 29, 2017, he deposes that they separated in June 2017. In a draft Answer to the Application for Divorce, he states that the parties have not separated yet, or, at best, have lived separately since February 2017.
[5] There is no dispute that in January, 2017 the respondent was attending Lakehead University in Thunder Bay, Ontario.
[6] The respondent’s evidence is that in January 2017, the applicant told him, by text, that she wanted a divorce but that they could get married again. The respondent’s evidence is the applicant also told him that she and her father were going to buy property and her father did not want his name to be on title.
[7] According to the respondent, in February 2017, he received the Application for Divorce by mail in Thunder Bay. His evidence is that the applicant assured him that they would live together again and insisted he sign the papers. According to the respondent, they had a good relationship throughout March and April but that in June 2017, the applicant told him that the marriage was over.
[8] The respondent also alleges that in January 2017, the applicant told him to see a lawyer to obtain legal advice regarding their matrimonial rights and a divorce. It is not in dispute that the respondent did attend at the office of Usman Sadiq and completed an Intake form. It is also not in dispute that he did not see Mr. Sadiq or anyone else at the firm during that one attendance nor did he retain Mr. Sadiq.
[9] The applicant alleges that before the respondent returned to school at Lakehead in January 2017, he told her he would be seeing a lawyer to commence divorce proceedings. She alleges that the respondent told her that he attended at a lawyer’s office and was required to fill out an Intake form and Divorce Application but was not able to complete the form. He told her that he did not see or retain a lawyer.
[10] The applicant alleges that the respondent told her that he had listed the date of separation as “mid 2015” on the form. According to the applicant, at the time, she did not know the name of the law firm the respondent attended. The applicant alleges that by coincidence, she later retained Mr. Sadiq, as an agent, to assist her with preparation and completion of the divorce as she was unaware that the respondent had gone to his office. She then formally retained him in July 2017 after being served with the respondent’s motion to set aside the Divorce Order. It was at that time that Mr. Sadiq informed her that there could be a potential conflict as his office located a questionnaire/intake form partially completed by the respondent in January 2017.
[11] The respondent served the motion to set aside the Divorce Order after being served with the said Order on June 10, 2017.
[12] There is no dispute that the respondent signed an Acknowledgment of Receipt Card on February 23, 2017 after being served with the Application for Divorce. He did not defend the divorce action until after a divorce was granted and now seeks to set aside the granting of the divorce on the basis that he disputes the date of separation.
[13] The respondent asserts that in the applicant’s 2014 and 2015 Income Tax Returns, she claims to be married to the respondent. He points to that as evidence that supports his position that the parties did not separate on July 1, 2015.
[14] The applicant is seeking production of the information in Mr. Sadiq’s file regarding the date of separation that the respondent recorded which she alleges will confirm that he acknowledged that the date of separation was in 2015.
The Law
[15] The issue to be determined is whether Mr. Sadiq’s file, or the information contained therein regarding the date of separation, can be produced or whether it is subject to solicitor-client privilege.
[16] It is not disputed that the respondent attended at Mr. Sadiq’s office and completed an Intake form. He did so for the purpose of seeking legal advice. However, he never met with Mr. Sadiq or any other lawyer at Mr. Sadiq’s firm. There is no evidence that he consulted with anyone at the firm nor did he retain or pay a retainer to Mr. Sadiq.
[17] Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. The privilege is fundamental to the justice system and it is essential so that the legal system can properly function. Parties who consult a lawyer must do so in confidence. Once solicitor-client privilege is established, it should only be in limited and exceptional circumstances where it is not protected.
[18] All information which a person must provide to obtain legal advice, and that is given in confidence, is protected. (Miranda v. Richer 2003 SCC 67, [2003] 3 S.C.R. 193 at para 30)
[19] As noted in Pritchard v. Ontario (Human Rights Commission), [2014] 1 SCR 809, 2004 SCC 31, there are three preconditions that must be met to establish solicitor-client privilege as follows:
• There must be communication between lawyer and client
• The communication entails the seeking or giving of legal advice
• The communication is intended to be confidential by the parties
[20] Both the applicant and respondent have relied upon the decision of Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 SCR 860. At page 872, Lamer J. stated as follows:
The following statement by Wigmore (8 Wigmore, Evidence, para. 2292 (McNaughton rev, 1961)) of the rule of evidence is a good summary, in my view, of the substantive conditions precedent to the existence of the right of the lawyer's client to confidentiality:
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.
Seeking advice from a legal adviser includes consulting those who assist him professionally (for example, his secretary or articling student) and who have as such had access to the communications made by the client for the purpose of obtaining legal advice.
There are exceptions. It is not sufficient to speak to a lawyer or one of his associates for everything to become confidential from that point on. The communication must be made to the lawyer or his assistants in their professional capacity; the relationship must be a professional one at the exact moment of the communication. Communications made in order to facilitate the commission of a crime or fraud will not be confidential either, regardless of whether or not the lawyer is acting in good faith.
[21] Further, at page 876 Lamer J. commented as follows:
In the case at bar the principal issue is to determine when the solicitor-client relationship, which confers the confidentiality protected by the substantive rule and the rule of evidence, arises.
The Superior Court judge, as we have seen, was of the view that this relationship, and consequently the right to confidentiality, did not arise until the legal aid applicant had been accepted, that is, until the retainer was established.
When dealing with the right to confidentiality it is necessary, in my view, to distinguish between the moment when the retainer is established and the moment when the solicitor-client relationship arises. The latter arises as soon as the potential client has his first dealings with the lawyer's office in order to obtain legal advice.
The items of information that a lawyer requires from a person in order to decide if he will agree to advise or represent him are just as much communications made in order to obtain legal advice as any information communicated to him subsequently. It has long been recognized that even if the lawyer does not agree to advise the person seeking his services, communications made by the person to the lawyer or his staff for that purpose are nonetheless privileged (Minter v. Priest, [1930] A.C. 558; Phipson on Evidence, 12th ed., 1976, p. 244, No. 589; 8 Wigmore, Evidence (McNaughton rev. 1961), p. 587, para. 2304).
[22] At page 880, Lamer J. commented as follows:
It is also clear that solicitor-client privilege can extend to conversations in which a person makes disclosures while seeking to retain a solicitor, though in fact the retainer is not perfected. In Minter v. Priest, [1930] A.C. 558 at p. 573, Viscount Dunedin said:
Now, if a man goes to a solicitor, as a solicitor, to consult and does consult him, though the end of the interview may lead to the conclusion that he does not engage him as his solicitor or expect that he should act as his solicitor, nevertheless the interview is held as a privileged occasion.
It follows from the authorities referred to above that conversations with a solicitor’s agents held for the purpose of retaining him would also be privileged, even though the solicitor was not then, or ever, retained. In my view, the principle protects from disclosure a conversation between an applicant for legal aid and the non-lawyer official of the Legal Aid Society who interviews him to see if he is qualified.
Analysis
[23] In this case, the respondent attended at Mr. Sadiq’s office for the purpose of forming a professional relationship. He attended for the purpose of seeking legal advice. In that regard, he completed an Intake Form. The fact that Mr. Sadiq was not retained does not mean confidential information was not provided by the respondent. Solicitor-client privilege can be established even though the respondent did not speak with Mr. Sadiq or retain him. The respondent filled out a form with the intention of seeking legal advice and, as such, any communication contained in that form is privileged. That privilege exists even though the respondent did not see or speak with Mr. Sadiq,
[24] In the decision of Eizenshtein v. Eizenshtein, 2008 CanLII 31808 (ON SC), Wildman J. found at para. 44 as follows:
[44] Once a document has been shown to be a classic solicitor-client communication it is presumptively privileged. In deciding whether to admit it into court proceedings over the objection of the client, the onus should be on the person wishing to override the privilege to establish why the document should be admitted.
[45] A non-exhaustive list of some of the factors that a court might consider in making this determination would include:
- Threshold relevance - Is the evidence relevant to an issue before the court?
Do the communications disclose material facts that would assist the trier of fact in coming to the proper decision or do they relate primarily to advice or an opinion?
Is the information available to the court by any other means? If a party will be able to establish the same facts through some other evidence, the privileged communication becomes less relevant and the argument for its admission weakens.
Who is the author of the document or source of the communication? In many cases, a communication from a lawyer to the client would be less relevant than a communication from the client. Arguably, a client should not be held responsible for the wording of communication from his or her lawyer and that communication should not be admitted for use against the client, unless, it is necessary to understand the context of the client’s communications or to explain actions that the client subsequently took.
[25] In this case, I am satisfied that the Intake form would be governed by solicitor-client privilege. As indicated by Wildman J., the onus is on the person wishing to override the privilege to establish why privilege should be waived. One of the factors is whether or not the communication discloses material facts that would assist the trier of fact in coming to the proper decision or if it relates primarily to advice or an opinion.
[26] The date of separation is in dispute. While it would assist the court in resolving that issue to have information from the respondent with respect to what he said the date of separation was prior to receipt of the Divorce Order in June 2017 that is not sufficient grounds to waive privilege. Furthermore, there is other evidence that could be led by the parties to establish the date of separation such as information from family and friends, financial and banking records, any document that required an identification of marital status, etc.
[27] The applicant’s request for production of Mr. Usman Sadiq’s file or the information contained therein regarding the date of separation is denied.
[28] If the parties cannot agree on costs, the respondent can file a one page submission and his Bill of Costs by January 29, 2018. The applicant can file her one page response by February 16, 2018.
ORIGINAL SIGNED BY
SHAW J.
Released: December 22, 2017
CITATION: Syal v. Kumar, 2017 ONSC 7703
COURT FILE NO.: FS-17-88591
DATE: 20171222
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PANKHURI SYAL, Applicant
AND:
DANIEL DEEPAK KUMAR, Respondent
ENDORSEMENT
SHAW J.
Released: December 22, 2017