Court File and Parties

COURT FILE NO.: CV-18-594225 DATE: 20190329

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: International Creative Talent Agency LLC, Plaintiff - and - Dion Radcliffe McLean, Defendant

BEFORE: Master Todd Robinson

COUNSEL: M. Kestenberg and J. Parker, for the defendant / moving party G. Oddy, for the plaintiff / responding party

HEARD: March 18, 2019

Reasons for Decision

[1] The motion before me is the latest in a series of motions (and an appeal) brought by both the plaintiff and the defendant prior to the close of pleadings. The defendant seeks production of solicitor-client privileged communications and documents specifically referred to or implicated by a short affidavit of the plaintiff’s lawyer, Glen M. Perinot (the “Perinot Affidavit”), which was sworn in response to the defendant’s motion to quash a pending appeal by the plaintiff. That appeal is brought from the decision of Master Sugunasiri granting the defendant’s prior motion to set aside a noting in default (not default judgment) and permitting a statement of defence to be filed.

[2] This action has had a tortured start. It appears that both parties have quickly become mired in costly and unnecessary squabbling over procedural rights instead of dealing with the substantive merits of this litigation. However, as much as I may wish to assist the parties by dealing with this motion, for the reasons that follow I have determined that the motion is not properly brought before a master and, accordingly, that I lack jurisdiction to decide it.

Background to Motion

[3] In this proceeding, the plaintiff has sued its former lawyer alleging solicitor negligence in the handling of a prior case for the plaintiff, claiming damages of $500,000.00. The current series of motions and appeal were kick-started by the plaintiff noting the defendant in default shortly after the formal deadline for the statement of defence, without prior notice to the defendant of any intention to do so. Default judgment was not obtained prior to a set aside motion being brought.

[4] The defendant’s motion to set aside the noting in default was ultimately heard before Master Sugunasiri on October 5, 2018. It had been previously scheduled, but was adjourned to permit an interlocutory refusals motion by the plaintiff arising from cross-examination on the defendant’s affidavit that had been delivered in support of the set aside motion. Master Sugunasiri heard and decided that refusals motion and, thereafter, the set aside motion.

[5] As noted, Master Sugunasiri ultimately determined that the noting in default should be set aside, the defendant should be entitled to defend, and the case proceed for a hearing on its merits. The plaintiff has appealed that decision, although the defendant’s position is that notice of appeal was not served within required timelines. The defendant has accordingly brought a motion to quash the appeal. Both the appeal and motion to quash are currently scheduled to be heard by a judge on June 4, 2019. The affidavit that is the subject of this motion was delivered as part of the plaintiff’s responding materials to the defendant’s motion to quash. Cross-examination on that affidavit has not occurred.

Lack of Jurisdiction

[6] The primary issue on this motion is whether or not the content of the Perinot Affidavit gives rise to waiver of solicitor-client privilege over communications, notes and records of plaintiff’s counsel, including Mr. Perinot, regarding the plaintiff’s decision to appeal Master Sugunasiri’s decision and, if so, the extent of such waiver. Corollary to that issue is the extent of production that should be ordered if waiver is found and the extent to which the defendant is entitled to copies of documents relied upon by Mr. Perinot in forming the opinions expressed in his affidavit.

[7] At the outset of the motion hearing, I raised a concern with counsel regarding my jurisdiction to hear this motion under Rule 37.02(2) of the Rules of Civil Procedure, which governs the jurisdiction of masters. In particular, Rule 37.02(2) provides as follows:

(2) A master has jurisdiction to hear any motion in a proceeding, and has all the jurisdiction of a judge in respect of a motion, except a motion,

(a) where the power to grant the relief sought is conferred expressly on a judge by a statute or rule;

(b) to set aside, vary or amend an order of a judge;

(c) to abridge or extend a time prescribed by an order that a master could not have made;

(d) for judgment on consent in favour of or against a party under disability;

(e) relating to the liberty of the subject;

(f) under section 4 or 5 of the Judicial Review Procedure Act; or

(g) in an appeal.

[8] This motion is an interlocutory motion brought in respect of the motion to quash the plaintiff’s appeal. Since the plaintiff’s intention to appeal is a key aspect of the motion to quash, and is also the substance of the production sought on this motion, this appears to be a motion “in an appeal” for which a master lacks jurisdiction as set out in Rule 37.02(2)(g). I invited both counsel to address this issue. Both agreed that a master has jurisdiction, although neither had any case law to support their views. Counsel encouraged me to proceed with the motion, since they did not dispute my jurisdiction, had both prepared for argument and were already in court. A short recess was taken so that relevant case law on jurisdiction could be reviewed.

[9] During the recess, neither I nor counsel located any directly applicable case law under Rule 37.02(2)(g). I provided counsel with the decision in Ontario Council of Hospital Unions v. Ontario (Health and Long-Term Care), [2007] OJ No 411. In that case, Justice Ferrier held that a master lacked jurisdiction to hear an interlocutory motion in a judicial review application, since a master lacked jurisdiction under Rule 37.02(2)(f) to hear a judicial review and the subject motion was an interlocutory motion within the judicial review. However, in the particular circumstances of that case, Master Polika was found to have jurisdiction, since Justice Ferrier held that Justice Winkler had effectively directed a reference of the subject motion to Master Polika, via the Administrative Master, under Rule 54.

[10] I expressed my view to counsel that the situation before me was substantively the same, except that there had been no reference of the defendant’s motion to be heard by a master.

[11] In response, both counsel made arguments in support of a master having jurisdiction to hear the defendant’s motion, which were collectively as follows:

(a) Rule 37.02(2)(g) only applies to appeals (i.e., a master has no jurisdiction to hear an appeal);

(b) The motion to quash is not itself a motion “in an appeal”, but rather is a separate motion from the appeal;

(c) Any motion on refusals from cross-examination on affidavits in the motion to quash would properly be brought to a master;

(d) Neither party disputes and both parties consent to my jurisdiction; and

(e) Both parties, by their counsel, provided undertakings that they would not appeal any decision that I render on the basis of jurisdiction.

[12] I confirmed at the time that masters cannot assume jurisdiction that we do not have, and that I would have to consider and render a decision on my jurisdiction if the parties insisted on me hearing the motion. I offered counsel the option of adjourning for me to both consider and decide if I did, in fact, have jurisdiction to hear the motion or, if they still wished to proceed, then submissions could be made on the understanding that I may nevertheless find that I lack jurisdiction. Counsel opted to proceed with submissions since they were confident of my jurisdiction, were prepared for the hearing and were already in court. I accordingly heard the motion submissions, but on the understanding that any decision on the merits of the motion would be subject to first determining my jurisdiction.

[13] I have considered the arguments made regarding a master’s jurisdiction. However, I find that a master lacks jurisdiction to hear the defendant’s motion.

[14] I deal first with the arguments that the parties do not dispute my jurisdiction and consent to it. Unlike judges, the jurisdiction and powers of masters are derived from statute. A master has no inherent jurisdiction. Accordingly, parties to litigation cannot give masters jurisdiction that we do not have: Ontario Council of Hospital Unions v. Ontario (Health and Long-Term Care), supra, paras. 27 and 37. We also cannot assume jurisdiction over matters for which we have no authority to decide. It is accordingly irrelevant that neither party disputes my jurisdiction to hear and decide the motion, that they consent to my jurisdiction, or that they have undertaken not to appeal based on lack of jurisdiction.

[15] Dealing next with the argued interpretation of Rule 37.02(2)(g), I find that the proposed interpretation that it means only that masters cannot hear appeals is at odds with the plain language used, which expressly states that a master’s lack of jurisdiction is for “a motion […] in an appeal”. Rule 37.02(2) is specific to motions.

[16] Dealing with the characterization of the motion to quash as being separate from the appeal, I do not agree. The motion to quash is brought solely as a result of and in response to the plaintiff’s appeal from the set aside decision. That is evident from the sole relief sought, namely “an Order quashing the Plaintiff’s appeal of Master Sugunasiri’s Order dated October 5, 2018”. The motion to quash is thereby clearly a motion “in an appeal”. This interlocutory motion in respect of the quash motion is therefore also a motion “in an appeal”. Pursuant to Rule 37.02(2)(g), I accordingly have no jurisdiction to decide it.

[17] I also do not agree that a motion on refusals from cross-examinations in the motion to quash would be brought to a master. For the same reasons, it would also be a motion in an appeal, and would thereby need to be brought to a judge (absent a reference to a master, if permitted by the Rules and deemed appropriate, as in Ontario Council of Hospital Unions v. Ontario (Health and Long-Term Care)).

[18] I am reinforced in my view by the fact that if the plaintiff’s appeal were properly brought to either the Court of Appeal or the Divisional Court, then a motion to quash and any related motion would need to be brought in those courts. A master would lack jurisdiction to hear them. There is no principled basis for a different approach in an appeal to a judge from a master’s decision, particularly given the wording of Rule 37.07(2)(g).

[19] I am further reinforced in my view by the fact that this motion could well have come before Master Sugunasiri had it been assigned to her list instead of my own. If the defendant’s argument were accepted that the motion to quash is not a motion in an appeal, but rather is separate from the appeal, and that this motion to compel production is accordingly properly brought to a master, then the motion could presumably be properly heard and decided by Master Sugunasiri herself, even though the substance of this motion is production of communications and documents relevant to formation of the plaintiff’s intention to appeal Master Sugunasiri’s own decision. That cannot be correct.

[20] Accordingly, subject to the directions of a judge, the defendant’s motion is adjourned to be heard by a judge on a date to be fixed with the motion scheduling unit. In the circumstances, it is appropriate that costs of the hearing before me, if any, be reserved to be determined following disposition of the motion.

(original signed)

Master Todd Robinson

DATE: March 29, 2019