Court File and Parties

COURT FILE NO.: FC-18-1883 DATE: 20190524 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRACHA YOCHEVED SIROTA, Applicant -and- GADY SIROTA, Respondent

BEFORE: Justice Julie Audet

COUNSEL: Gonen Snir, for the Applicant Lisa Sharp, as agent for Gonen Snir Robin Brown, for Gonen Snir Russel A. Molot, for the Respondent

HEARD: May 16, 2019

Endorsement

[1] This is a motion by the respondent, Mr. Gady Sirota (hereinafter “Mr. Sirota”), seeking an order removing Mr. Gonen Snir as counsel for the applicant, Ms. Bracha Yocheved Sirota (hereinafter “Ms. Sirota”).

[2] Mr. Sirota alleges that throughout the years, Mr. Snir’s family and his family had an ongoing relationship and that he became a close friend of his; and at times, his confidant. He further alleges that on several occasions, Mr. Snir assisted him with legal issues involving his parents in Israel; and accordingly, collected personal financial information about him which is relevant to the current matrimonial proceeding. Further, Mr. Sirota alleges that he sought Mr. Snir’s assistance as a friend and as a lawyer on matters related to his marital difficulties and subsequent separation from his wife. In that context, he states that he provided Mr. Snir with confidential information which is now likely to be used to his prejudice in the context of this family proceeding.

[3] Mr. Snir denies having been a personal friend of Mr. Sirota or his confidant at any point during the time they have known each other. While he acknowledges that for the past several years, both families usually celebrated Jewish holidays together, that they once had lunch together, and that he provided some assistance to the family as a Notary on two occasions, he states that there was no confidential information exchanged during those encounters that would disqualify him from acting for Ms. Sirota in this matter. Both Mr. Snir and Ms. Sirota argue that Mr. Sirota’s attempt to have Mr. Snir removed as counsel for Ms. Sirota is simply a strategy on his part to deprive her of the counsel of her choice and to delay this proceeding.

[4] For the reasons that follow, I am of the view that Mr. Snir should be removed as solicitor of record for Ms. Sirota based on my finding that Mr. Snir is clearly in a position of conflict of interest.

Background

[5] The parties married in 1999 and separated in November 2017 or in August 2018 (the actual date of separation is disputed, but nothing turns on this for the purpose of this motion). They continued to live separate and apart under the same roof from the date of their separation until February 4, 2019, when Ms. Sirota moved out of the matrimonial home.

[6] The parties are from Israel and moved to Canada in 2010 with their two children. Ms. Sirota initially met Mr. Snir in 2015 or 2016 when they were both teaching Hebrew to government employees. The Sirota family has known Mr. Snir and his family since that time. They have been to each other’s homes for dinner on many occasions and have shared Jewish holidays together. This is not disputed by Mr. Snir.

[7] As Mr. Snir is an active member of the bar in both Ontario and Israel, Mr. Sirota alleges that his dual expertise has been sought by the Sirota family on a number of occasions in the past. Mr. Sirota further alleges that Mr. Snir has been a close friend, and at times his confidant. Specifically, it is alleged by Mr. Sirota that;

• when Mr. Sirota applied for financial support to attend Algonquin College, Mr. Snir acted as Commissioner and signed affidavits to certify the marriage certificate which was in Hebrew;
• in early 2017, Mr. Sirota’s father’s health was declining as he was diagnosed with dementia. As his father resided in Israel, Mr. Sirota contacted Mr. Snir in order to seek legal advice regarding:
  • his father’s will;
  • the monetary gifts that were given to the parties by his father throughout the years;
  • the money that his father transferred to him, in trust;
  • the father’s obligation to pay his bills, and;
  • the impact of having Ms. Sirota’s father, who also resided in Israel, acting as his father’s guardian and the consequences deriving from this decision in the event of a separation between him and Ms. Sirota;
• on December 12, 2017, Mr. Sirota and Mr. Snir had a lunch together, at the request of Mr. Sirota. The lunch lasted for over one and a half hour and it is alleged by Mr. Sirota that they discussed a number of things, most notably, his marital difficulties. Mr. Sirota’s affidavit contains significant details of the conversation he had with Mr. Snir during that lunch with regards to his family situation, his separation, and the consequences thereof;
• in August 2018 while the parties were in Israel, the parties had a dispute and Ms. Sirota left with the children to stay with a family member, against Mr. Sirota’s wishes and without telling him where they were. During that time, Mr. Sirota’s mother attempted suicide and Ms. Sirota’s family became involved in her care, without Mr. Sirota’s knowledge. On the night that Mr. Sirota was finally informed of this, and as he rushed to his mother’s side, he contacted Mr. Snir on “WhatsApp” to seek his advice with regards to financial issues arising from his mother’s care and declining health. He alleges that he also discussed his marital difficulties with Ms. Sirota and the problems he was having seeing his children while in Israel. Mr. Sirota’s affidavit contains many details about the advice he purportedly received from Mr. Snir, including a strong suggestion that he tries to reconcile with Ms. Sirota because, in his view, the issue could not be resolved in Israel.
• as the parties’ relationship was at an end when the parties returned to Canada in August 2018 and conflict was quickly escalating, on September 9, 2018 Mr. Sirota had a lengthy exchange with Mr. Snir on “WhatsApp” during which many issues related to the parties’ separation were discussed. The specifics of that text message exchange will be discussed in greater details later in these reasons.

[8] In response to Mr. Sirota’s motion and evidence, Ms. Sirota filed an affidavit sworn by her on May 9, 2019, as well as two affidavits sworn by Mr. Snir on May 9 and 10, 2019. Ms. Sirota’s affidavit was of little use to me since she had no direct knowledge of the various contacts and conversations alleged to have occurred between Mr. Sirota and Mr. Snir.

[9] In his May 9, 2019 affidavit, Mr. Snir confirms that he met the Sirota family at a birthday party of Israeli friends on or about August 2014, and that the two families usually celebrated Jewish holidays together. He also acknowledges that he commissioned the parties’ signature on an affidavit that was prepared as part of Ms. Sirota’s admission process at Algonquin College and that his assistance was sought to commission various documents in the context of Mr. Sirota’s father’s Israeli guardianship. However, he denies that he was ever engaged in a solicitor-client relationship with Mr. Sirota, that he ever obtained confidential information from Mr. Sirota related to his separation and which could be used against him in the context of this proceeding, or that he was a close friend of, or that he ever acted as a confidante for, Mr. Sirota.

[10] Further, while he admits that he met Mr. Sirota for lunch on December 12, 2017, he states that the lunch lasted less than an hour and that all they discussed was flying, gliding and motorcycle riding. Mr. Snir denies having discussed Mr. Sirota’s marital difficulties or any other legal issues with him during that lunch. He says that the lunch was brief, that the restaurant was noisy and that he only exchanged pleasantries with Mr. Sirota.

Legal Framework

[11] Section 1.1-1 of the Law Society of Ontario, Rules of Professional Conduct, Toronto: Law Society of Ontario, 2014 defines a conflict of interest as follows:

conflict of interest” means the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely and affected by the lawyers own interest or the lawyer’s duties to another client, a former client, or 1/3 person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer.

[12] Section 3.4-1 of the Rules of Professional Conduct provides that a lawyer shall not act or continue to act for a client where there is a conflict of interest, except as permitted by the Rules.

[13] The legal principles applicable to the determination of whether a disqualifying conflict of interest exists were fully canvassed by Justice Blishen in Rosenstein v. Plant, 2010 ONSC 502. I am reproducing here the relevant excerpts from that decision:

16 In determining whether a disqualifying conflict of interest exists, the Supreme Court of Canada in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, 1990 CarswellMan 233 (S.C.C.) indicates that the court must consider and balance three competing values: "the maintenance of the high standards of the legal profession and the integrity of the judicial system; the right of litigants not to be deprived of their counsel without good cause; and the desirability of permitting reasonable mobility in the legal profession." Sopinka J. notes that:

47 ...In dealing with the question of the use of confidential information we are dealing with a matter that is usually not susceptible of proof. ...the test must be such that the public, represented by the reasonably-informed person, would be satisfied that no use of confidential information would occur. That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Is there a disqualifying conflict of interest? In this regard, it must be stressed that this conclusion is predicated on the fact that the client does not consent to, but is objecting to, the retainer which gives rise to the alleged conflict.

48 Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?

17 With respect to the first question, Sopinka J. states:

49 ... once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge.

18 The second question is whether the confidential information will be misused. As stated by Sopinka J.:

50 ... A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be a danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. This would prevent the lawyer from adequately representing the new client. Moreover, the former client would feel at a disadvantage. Questions put in cross-examination about personal matters, for example, would create the uneasy feeling that they had their genesis in the previous relationship. ...

19 It is not necessary for a lawyer to be actually retained before establishing a solicitor-client relationship relevant to the determination of a potential conflict of interest. In Power v. Zuro, 2009 ONSC 31982, [2009] O.J. No. 2575, 2009 CarswellOnt 3553 (Ont. S.C.J.), Aitken J. referred to the Supreme Court of Canada's decision in Descôteaux c. Mierzwinski (1982), 70 C.C.C. (2d) 385 (S.C.C.) and stated:

15 ...Such a relationship arises as soon as the potential client has his or her first dealings with the lawyer or his staff in the process of seeking legal representation or legal advice. At p. 403, the Court stated: “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.”

[14] There are obviously credibility issues arising from the contradictory and untested affidavit evidence before me, especially as it relates to the nature and extent of the conversations that took place between Mr. Snir and Mr. Sirota on matters related to his separation. For that very reason, I have disregarded Mr. Sirota’s evidence entirely and based my decision purely on the evidence provided by Mr. Snir. Based on his evidence alone, I come to the conclusion that Mr. Snir and Mr. Sirota had a close personal relationship, that Mr. Sirota sought Mr. Snir’s advice and guidance on different personal and legal matters, including the matter of his marital difficulties and subsequent separation from Ms. Sirota, and that in the context of their exchanges confidential information was given to Mr. Snir which puts him in a clear conflict of interest. The fact that Mr. Snir was never formally retained by Mr. Sirota to represent him in the context of any of those legal matters is irrelevant here.

[15] The following evidence contained in Mr. Snir’s own affidavits clearly supports a finding that he was a close (if not a very close) friend of Mr. Sirota and his family:

• There is an acknowledgement that the two families celebrated most Jewish holidays together since 2014; they had dinner at each other’s houses regularly;
• Mr. Snir was the Sirota family’s “go to guy” whenever they were in need of information, guidance or assistance from a lawyer who had dual legal expertise in both Ontario and Israeli law, although the two were never tied by a formal legal retainer;
• At the request of Mr. Sirota, on December 12, 2017, Mr. Snir met with Mr. Sirota for lunch. Regardless of the length of that meeting, and regardless of whether or not the parties’ marital difficulties were discussed, both men had lunch as friends and Mr. Sirota communicated at least some personal information to Mr. Snir, including the fact that he was going through a tough time, and as a result, was using antidepressants medication. This led Mr. Snir to express concerns about their downside effects and to later that night send him information about a website describing the side effects of such medication. Mr. Snir later wrote to Mr. Sirota: “I’m just concerned for you my brother”;
• The two families, along with a third one, had planned a joint family vacation in the winter of 2018. While the Snir family was ultimately unable to go, the Sirota family did go and Mr. and Ms. Sirota sent the Snir family very personal pictures of their holiday. Those pictures were attached as an exhibit to Mr. Snir’s May 9th affidavit to corroborate Ms. Sirota’s position that the parties separated in August 2018 and not in November 2017 as alleged by Mr. Sirota;
• In the summer of 2018, while the parties were in Israel, Ms. Sirota contacted Mr. Snir on “WhatsApp” seeking his assistance with regards to her bank blocking the parties’ account because they were living abroad. He advised her that he was not familiar with such a thing and offered her immediate assistance, which she kindly refused;
• While the parties were in Israel in the summer of 2018 experiencing significant marital difficulties and challenges with the care of Mr. Sirota’s mother, both communicated with Mr. Snir to seek or obtain information from him. Mr. Snir was made aware by both parties that Mr. Sirota had filed an application for divorce before the Rabanic Court of Israel, which Mr. Snir disapproved of and clearly communicated to Mr. Sirota;
• Mr. Snir referred to himself in his affidavits alternatively as “a friend of the family” and “a friend” of Mr. Sirota. He not only expressed to Mr. Sirota his concerns for his health, but also his disapproval of Mr. Sirota’s actions while in Israel, and his happiness (“I was very happy”) at the fact that Mr. Sirota had withdrawn his claim for divorce in Israel.

[16] Further, it is clear from Mr. Snir’s own affidavits that he provided guidance to Mr. Sirota on at least two legal issues: the potential implications from a legal perspective arising from Mr. Sirota’s mother’s declining health (in Israel) and the potential implications from a family law perspective of his actions (both in Israel and in Ontario) towards his wife. My conclusion to that effect is based on the following evidence contained in Mr. Snir’s affidavits:

• Mr. Snir had significant communications with Mr. Sirota on or about August 8, 2018 with regards to his mother’s deteriorating health and Mr. Sirota’s legal obligations to support her as her son. In that context, Mr. Sirota shared his concerns about his financial obligations towards his mother, about property belonging to his mother in Israel, and about the concerns he had about individuals residing in the same building as her, among other things. This exchange was sufficiently important and detailed for Mr. Snir to take written notes of the conversation, which he attached as an exhibit to one of his affidavits. I have reviewed those notes and I come to the conclusion that the information provided by Mr. Sirota to Mr. Snir was in fact quite confidential and, at least in part, relevant to this family law proceeding.
• On August 17, 2018, Ms. Sirota communicated with Mr. Snir to advise him that Mr. Sirota had filed an application for divorce before the Rabanic Court of Israel. After expressing his complete dismay about this piece of news, he conveyed to Ms. Sirota that the Rabanic Court of Israel did not have jurisdiction in that matter. Ms. Sirota provided him with a copy of the divorce claim filed by Mr. Sirota in Israel, seeking his input as well;
• Mr. Snir became aware of various very personal issues related to the parties’ marital difficulties during that summer from both parties, including the fact that Mr. Sirota had not attended his sons’ Bar Mitzvah. When Mr. Snir was advised by Mr. Sirota on September 9, 2018 that the parties were separated, he offered his help to Mr. Sirota (“if I can help with anything then say”).

[17] Both Mr. Snir and Mr. Sirota referred in their affidavits to a very lengthy exchange of text messages (on “WhatsApp”) between them which occurred on September 9, 2018. Both parties provided their own English translation of that exchange (which was written in Hebrew), but neither obtained a certified translation. For the purpose of deciding on this motion, I rely solely on Mr. Snir’s own translation to avoid issues related to credibility.

[18] Mr. Snir explains that although he had already retained his own lawyer to represent him in the context of his separation, Mr. Sirota requested his assistance coordinating access between him and the children on the second holiday of the Jewish New Year. Mr. Snir then wrote to him:

Just be healthy. Try to finish it nicely. No need to involve lawyers. You have nothing to fight about. I do not know how jurisdiction in Israel is relevant. But it does not matter. I am ready to help you terminate the matter in agreement and in a friendly manner. You have three children to grow together. Have a good year.

[19] Mr. Sirota then requested Mr. Snir’s assistance to facilitate a conversation with Ms. Sirota and he advised that he was using the police to convey his messages to Ms. Sirota. Mr. Snir states that he was shocked to find out about Mr. Sirota’s intention to involve the police. He wrote in his affidavit:

I was concerned from the damage it can cause to the children if they are exposed to that. As a friend of the family I wanted to do all I could to stop this.

[20] He then offered to meet Mr. Sirota in his office, to discuss the issues civilly. He wrote to Mr. Sirota:

Do you want both of you to meet at my office and talk? Stop the police and authorities. With that beginning they will not get out of your life. It will not go well. And that would hurt the children most.

[21] In response to this message, Mr. Sirota conveyed to Mr. Snir very confidential information about his views of Ms. Sirota’s behaviour and what his intentions were should she continue acting this way. Mr. Snir then proposed to speak to Ms. Sirota to “calm things down” and proposed to arrange a meeting with both of them in his office to try to work things out. Mr. Snir’s role as an advisor to Mr. Sirota is made clear by the following statement found in his May 9, 2019 affidavit:

I was also hoping that he would use common sense and if I said that I may have a problem to meet with him if he has a lawyer, he would prefer to try to resolve the issues in a way of a conversation that I facilitate between the parties as a friend.

[22] Based on all of the above, it is not difficult for me to find that Mr. Sirota’s evidence related to the exchanges he had with Mr. Snir during the lunch of December 12, 2017 and during their communications over the summer of 2018, is quite credible. In his affidavit, Mr. Sirota explains at length, and in much detail, the nature and extent of his discussion with Mr. Snir during those encounters, which includes significant personal information about his marital difficulties.

[23] Not only do I find, as a fact, that Mr. Snir received confidential information from Mr. Sirota which is directly related to the parties’ separation, Mr. Snir’s own evidence makes it clear that he tried to act as a facilitator between the parties to help them contain the marital conflict and resolve the issues arising from their separation. While Mr. Snir is to be commended for trying to help his friends in this difficult situation, it is impossible for me to understand how he came to the conclusion that he could accept a retainer from either of these parties in the context of their separation.

[24] It is clear to me that Mr. Sirota would not have shared the information that he shared with Mr. Snir during their December 2017 lunch, while he was in Israel in the summer of 2018 or upon his return to Canada in September 2018, had he known that Mr. Snir would later be acting for Ms. Sirota in the context of the parties’ separation.

[25] For all those reasons, it is clear to me that Mr. Snir has placed himself in a conflict of interest which precludes him from acting on behalf of Ms. Sirota in this matter.

[26] Ms. Sirota argues that there is no other family lawyer in Ottawa who writes, reads and speaks Hebrew (the language in which she is most comfortable) and who is prepared to assist her under a Legal Aid certificate. She states that if Mr. Snir is precluded from acting on her behalf in this proceeding, she will be greatly prejudiced in that she will have to resort to an English speaking lawyer to represent her, and there will be significant delays associated with a change of representation. This is particularly disadvantageous, she says, because, at this time, she is in dire need of support for herself and the children and a motion is required on an urgent basis to force Mr. Sirota to pay such support.

[27] As stated by Justice Blishen in Rosenstein v. Plant, above, while the right to counsel of one’s choice is an important value considered by the Supreme Court of Canada in MacDonald Estate, it must be balanced with other competing values including maintaining the integrity of the judicial system. I find that the conflict of interest in this case is not only reasonably perceived by Mr. Sirota, it is real and it is material. In that context, it trumps Ms. Sirota’s right to choose Mr. Snir as her counsel.

[28] For that reason, an order shall issue removing Mr. Snir as counsel for Ms. Sirota.

Costs

[29] Mr. Sirota is the successful party in this motion and is therefore presumably entitled to his costs. If the parties are unable to agree, I will accept brief submissions not exceeding three pages (exclusive of Bills of Costs and Offers to Settle), in accordance with the following timelines:

• Mr. Sirota to provide his submissions within 15 days;
• Ms. Sirota to provide her submissions within 15 days thereafter;
• Mr. Sirota to provide his reply, if deemed necessary, within 7 days thereafter (such reply not to exceed one page).

[30] Mr. Sirota also seeks an order that any costs award granted to him by the Court be paid personally by Mr. Snir. To the extent that he wishes to pursue that claim, a separate motion shall be scheduled before me to deal with this specific issue.

[31] The parties are advised that costs for that particular motion will be fixed separately and independently from the main motion, should it proceed.

Madam Justice Julie Audet Date: May 24, 2019