COURT FILE NO.: CV-19-00623442-0000

DATE: 2019/11/18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT GLEGG

Applicant

• and -

LORNE GLASS, CHRISTINA DORIS/CHRISTEN SEATON BURRISON HUDANI LLP, JFCY/LEGAL AID ONTARIO, and LINDA SAPIANO

Respondents

James Zibarras for the Applicant

James Beesley for the Respondent Lorne Glass

Ian McKellar for the Respondents Christina Doris/Christen Seaton Burrison Hudani LLP and Linda Sapiano

HEARD: October 28, 2019

PERELL, J.

REASONS FOR DECISION

A. Introduction and Overview

[1] In a high conflict parental custody and parental control dispute that has involved the courts and over a dozen judges in Ontario and Florida, the Applicant, Robert Glegg, who resides in Ontario, now applies for the enforcement of Letters Rogatory (i.e. what is referred to in Ontario as a "letter of request") and of a subpoena in aid of a $9.0 million parental rights law suit against his ex-wife, Kaitlin Van Den Hurk and her husband, Richard Peacey, who reside together in Florida.

[2] The Respondents to Mr. Glegg’s application are two lawyers that acted for Ms. Van Den Hurk; namely, Linda Sapiano and Christina Doris,[^1] and three lawyers who acted for Olivia Glegg, who is Mr. Glegg’s and Ms. Van Den Hurk’s, now adult daughter.

[3] The first lawyer who acted for Olivia was Lorne Glass. The other two lawyers who acted for her are Jesse Mark and Emily Chan. They are employed by the Respondent, Justice for Children and Youth (“JFCY”), a legal aid clinic funded by Legal Aid Ontario to provide free legal assistance to children and youth. JFCY takes its instructions independently and directly from the young person and represents their interests without charge.

[4] In remarkable circumstances, which I shall describe below, the application to enforce the letters rogatory and the subpoena of the Florida court now focusses on Mr. Glass, who acted for Olivia for perhaps three months.

[5] It is important to note at the outset of these Reasons for Decision that for over 30 years, based on the famous case of Frame v. Smith,[^2] what Mr. Glegg is seeking to do in Florida is a forbidden cause of action in Canada.

[6] It is also important to note at the outset that in addition to his action in Florida, in Ontario Mr. Glegg has commenced: (a) criminal proceedings against Ms. Van Den Hurk; (b) discipline proceedings against Mr. Mark and Ms. Chan; (c) a civil conspiracy action against Hazel Flores and Armando Flores, who are friends of Olivia and of Ms. Van Den Hurk; and (d) a civil conspiracy action against JFCY, Mr. Mark, and Ms. Chan.

[7] The theory of all the court or administrative proceedings and, for present purposes, most significantly, the theory of the Florida action is that a civil fraud was perpetrated on the Ontario court system through the use of Ontario lawyers to unlawfully interfere with Mr. Glegg’s rights of sole custody of his then 16-year old daughter Olivia. In other words, the theory of Mr. Glegg’s case, which is being litigated in Florida, is that expatriate Canadian litigants, their friends in Canada along with Canadian lawyers perpetrated a fraud on the administration of justice in Ontario denying Mr. Glegg his parental rights.

[8] Further, it is also important to note at the outset that although Mr. Glegg denies it, the purpose of his application is for the disclosure of materials that may be subject to solicitor and client privilege. This is problematic because in Canada, solicitor and client privilege is regarded as having quasi-constitutional importance to the administration of justice. It is a substantive rule of law and a sacrosanct fundamental principle of justice.[^3]

[9] Mr. Glass purports to take no position on the application, but this was a façade, because he filed a detailed factum exhorting the court to protect solicitor and client privilege.

[10] For the reasons that follow, I dismiss Mr. Glegg’s application because granting the application would offend public policy.

[11] I direct Mr. Glegg to deliver forthwith a copy of these Reasons to the Honorable Judge Martin Bidwill of the Seventeenth Judicial Circuit Court in Broward County, Fort Lauderdale, Florida, U.S.A. of the forthwith. Further, I direct him to deliver forthwith a copy of these Reasons to the Court of Appeal for an appeal in the criminal proceedings against Ms. Van Den Hurk that is scheduled for hearing on December 6, 2019.

B. Procedural Background

[12] Mr. Glegg’s Notice of Application was issued July 10, 2019. The application was supported by his affidavits dated July 8, 2019 and August 30, 2019.

[13] The application was against Ms. Sapiano, Ms. Doris, Christen Seaton Burrison Hudani LLP (Ms. Doris’ law firm), and JFCY.

[14] The application was defended by JFCY, which delivered an affidavit from Mary Birdsell dated September 26, 2019. Ms. Birdsell is a lawyer and the executive director of JFCY.

[15] Subsequently, the application was withdrawn against Ms. Sapiano, who, as noted above, had been Ms. Van Den Hurk’s lawyer in the high conflict custody dispute.

[16] On October 4, 2019, Mr. Glegg was cross-examined.

[17] On October 7, 2019 Ms. Birdsell was cross-examined.

[18] The application came on for a hearing on October 28, 2019.

[19] At the return of the application, Counsel for Ms. Sapiano, Ms. Doris, her law firm, and for Mr. Glass appeared.

[20] At the return of the application, JFCY did not appear, although its lawyer was in the courtroom on a watching brief. Mr. Glegg and JFCY had agreed to adjourn the application as against JFCY to be argued later. I, however, refused to adjourn the application unless it was adjourned in its entirety. I advised the parties that Mr. Glegg’s application could not properly be heard seriatim, because the whole factual record was relevant and had been relied on. For instance, in his application as against Mr. Glass, Mr. Glegg was relying on information from the affidavit and cross-examination of Ms. Birdsell. Moreover, the positions being taken by the parties were intertwined.

[21] I advised the parties that I would remain seized of the matter and that I was prepared to hear the matter promptly after an adjournment. I recessed the application for the parties to obtain instructions. After the recess, Mr. Glegg advised me that he was withdrawing his application with prejudice as against JFCY. He and the other parties were ready to proceed.

[22] The hearing proceeded. Ms. Sapiano, Ms. Doris, and her law firm advised the court that they did not oppose the application. Mr. Glass advised the court that he was taking no position, but in his factum, he exhorted the court to uphold the principles of solicitor and client privilege and to hold Mr. Glegg to his burden of proving that the letters rogatory should be issued.

[23] I heard argument from the parties, and during the argument, I suggested to the parties that there was more to the public policy issue than just the matter of solicitor and client privilege that had been raised by JFCY and by Mr. Glass.

[24] After the completion of argument, I reserved judgment and made the following endorsement, that invited Mr. Glegg to address further the public policy defence and the matter of the jurisdiction of the Florida court. My endorsement stated:

This is an application to enforce letters rogatory. The applicant is Robert Glegg. The application is being withdrawn with prejudice and without costs as against Justice for Children and Youth/Legal Aid Ontario and Linda Sapiano. I am reserving judgment with respect to the remaining respondents. While the matter is on reserve, I direct Mr. Glegg is to provide me with a copy of the judgment on the jurisdictional motion brought in Florida by November 4, 2019, and by November 4, 2019, he is at liberty to file any additional authorities and written argument on the issue of whether, apart from the issue of solicitor-client privilege, there are other public policy issues relevant to the enforcement of letters rogatory that are relevant to the request being made in the immediate case.

[25] On November 4, 2019, Mr. Glegg delivered a supplementary factum addressing the jurisdiction of the Florida court and the public policy issue.

C. Facts

[26] The following factual background is derived from: (a) Mr. Glegg’s affidavits and from the transcript of his cross-examination; (b) Ms. Birdsell’s affidavit and the transcript of her cross-examination; and (c) a review of the court decisions in Florida and Ontario.

[27] As will soon become apparent at the critical centre of the factual background are numerous Ontario court decisions, including decisions by Justices Kruzick, Trimble, Sproat, Miller, Kiteley, Fitzpatrick, Gibson, Kurtz, Benotto (Justices Gillese and Roberts concurring), Gray, and Conlan.

[28] On March 27, 1998, Mr. Glegg married Ms. Van Den Hurk.

[29] Olivia was born on July 17, 1999. It shall be important to note that she is intellectually gifted and strong-minded. She excelled at school and continues to excel at university, where she is currently enrolled as a 20 year old engineering student with a 4.0 grade (A+) average.

[30] Mr. Glegg and Ms. Van Den Hurk separated in 2001 and were divorced in 2002. They signed a Separation Agreement dated April 20, 2001.

[31] In 2003, Ms. Van Den Hurk married Mr. Peacey. They have two daughters that are Olivia’s half-sisters.

[32] On August 31, 2006, Mr. Glegg and Ms. Van Den Hurk signed the fourth amendment to the Separation Agreement. Under the Separation Agreement there was joint custody and the parties agreed to live within 15 kilometres of the intersection of Trafalgar Road and Lakeshore Avenue in Oakville. The Agreement contained a mandatory dispute resolution process by mediation and then by private arbitration if the mediation failed.

[33] In November 2013, Ms. Van Den Hurk and Mr. Peacey moved to Fort Lauderdale, Florida. Olivia remained in Ontario living with Mr. Glegg, who now had sole custody of her.

[34] On August 24, 2014, Olivia went to visit her mother in Florida for a planned 9-day visit.

[35] On August 29, 2014, Linda Sapiano, a lawyer practicing in Hamilton, Ontario wrote Mr. Glegg. She advised him that she was acting for Ms. Van Den Hurk. Ms. Sapiano wrote to inform Mr. Glegg that Olivia had advised Ms. Van Den Hurk that she wished to remain in Florida and that Olivia had enrolled in a high school in Fort Lauderdale.

[36] On September 3, 2014, Mr. Glegg brought an urgent motion without notice that was heard by Justice Kruzick in Toronto. Justice Kruzick ordered that Olivia be returned to Ontario to the temporary custody of Mr. Glegg. The return date of the motion was fixed for September 24, 2014 in Milton.

[37] On September 4, 2014, Mr. Glegg obtained an order from the Florida Court enforcing the Ontario order in that state.

[38] Mr. Glegg went to Florida where he attempted for several weeks to persuade Olivia to return with him to Oakville of her own free will. She refused.

[39] On September 24, 2014, the temporary custody order was returned before Justice Trimble in Milton, Ontario. Mr. Glegg was represented by Thomas Bastedo, Q.C. Ms. Van Den Hurk was represented by Ms. Sapiano. The 14 year old Olivia was not represented.

[40] Justice Trimble reserved judgment and released his decision on October 1, 2014.[^4] He made a temporary order. He ordered that Justice Kruzick’s order continue and that Ms. Van Den Hurk be ordered to send Olivia to Ontario notwithstanding that Olivia did not wish to go. In his reasons, Justice Trimble stated that once Olivia returned, the issue of residence and access could then be addressed. He said that until there was a trial, it was in Olivia’s interest that she return to Ontario. Justice Trimble noted that Olivia’s reasons for wishing to stay in Florida were not well articulated by her.

[41] On October 2, 2014, having failed to persuade Olivia to return, Mr. Glegg enlisted the Fort Lauderdale police to apprehend Olivia and take her to the airport. Mr. Glegg and Olivia returned to Oakville.

[42] With Olivia back in Canada, the matter of her custody moved to mediation, but it appears that in the interim, Ms. Van Den Hurk was being denied access to Olivia. There was a motion heard by Justice Sproat and on December 17, 2014, Justice Sproat refused to stay the action but indicated that he would make an interim order about access should the parties not come to an arrangement. The mediation between Mr. Glegg and Ms. Van Den Hurk was to proceed. It appears that a resolution of the matter of access to Olivia was subsequently reached.

[43] It also appears that the mediation proceeded and was successful in resolving the matter of custody of and access to Olivia. On March 6, 2015, there was a hearing before Justice Miller to implement the settlement. Mr. Glegg was represented by Thomas Bastedo, Q.C. Ms. Van Den Hurk was represented by Ms. Sapiano. On consent, Justice G. Miller made an order that Mr. Glegg have sole custody and legal care and control of Olivia up to July 17, 2017, when Olivia would become 18 years old. As a term of the order, Justice Miller granted Mr. Glegg a term authorizing the police to apprehend and deliver Olivia to him. Justice Miller’s order provided for access to Ms. Van Den Hurk in Florida, including the week of the March school break, for four weeks during the summer school break and one week of the Christmas Holidays.

[44] On March 9, 2015, the Separation Agreement was amended to reflect Justice Miller’s order.

[45] In the winter of 2015, there was a dispute between Mr. Glegg and Olivia about her education. He wished her to change high schools. She did not want to leave her private school. Olivia’s wishes did not prevail, and she switched enrollment to a public school, where she continued to thrive as a student. However, the relationship between father and daughter was strained.

[46] In the fall of 2015, Olivia decided that she wished to apply for early admission to university. She had accelerated her course load and had completed all her courses and could graduate from secondary school early.

[47] With the assistance of Ms. Van Den Hurk but - without the knowledge of Mr. Glegg - Olivia applied for admission to a university in Florida.

[48] Olivia’s covert application and Ms. Van Den Hurk’s role in it is the second outbreak of the family relationships breakdown.

[49] On December 17, 2015, the University of Miami wrote Olivia at her mother’s address in Florida. The University advised Olivia that she had been accepted for admission and had been granted a $24,000 per year scholarship.

[50] It may be inferred that Olivia, and perhaps others, now planned for her to complete her education in Florida. Around this time, there is evidence of text messages between Olivia and Mrs. Flores that appears to indicate that Mrs. Flores had arranged for Olivia to obtain legal advice. As noted above, Mrs. Flores is a friend of Olivia and of Ms. Van Den Hurk.

[51] It may be inferred from the text messages that Mrs. Flores introduced Olivia to Mr. Glass sometime in January and February 2019.

[52] However, it may also be inferred from the messages that by March 2019, the lawyer-client relationship between Olivia and Mr. Glass was coming to an end. It appears that Mr. Glass had experienced difficulties in being paid and he was not prepared to do further work unless he received a $20,000 retainer. It appears from the text messages that Olivia and Mrs. Flores were not impressed with Mr. Glass, and it may be inferred that that Mrs. Flores arranged for a change of lawyers and for JFCY to assist and to represent Olivia.

[53] Mr. Glegg was not aware of any of these plans for Olivia, but sometime in early April 2016, Mr. Glegg did learn that Olivia was enrolling at the University of Miami. Mr. Glegg believed that Olivia had been surreptitiously encouraged to enroll in the university by Ms. Van Den Hurk.

[54] On April 13, 2016, Mr. Glegg brought a motion for an order that Ms. Van Den Hurk had breached Justice Miller’s order. Mr. Glegg also brought proceedings in Florida to obtain an order requiring the University of Miami to produce the contents of Olivia’s application file for the purposes of his motion in Ontario.

[55] On the evening of April 13, 2016, Olivia, who was three months shy of her 17th birthday, moved out of Mr. Glegg’s home. She went to live with Mrs. Flores, who sometimes hosted Ms. Van Den Hurk when she visited Ontario.

[56] Ms. Van Den Hurk has sworn under oath that she did not encourage or know about Olivia’s departure from Mr. Glegg’s home until later.

[57] On the evening of April 13, 2017, Mr. Glegg sent the police to retrieve Olivia. Olivia told the police that she had withdrawn from parental control, and the police officers left her alone. It may be inferred that Olivia had received legal advice about the nature of a withdrawal from parental control.

[58] On April 22, 2016, Olivia delivered a letter to the principal of her school and indicated that she had withdrawn from parental control.

[59] On April 28, 2016, Olivia, represented by Jesse Mark and and Emily Chan of JFCY, brought an ex parte application before Justice Kiteley for a formal declaration that Olivia had withdrawn from parental control.

[60] In her affidavit supporting her application for a declaration, Olivia deposed that she was prompted to act because the University of Miami had advised her that Mr. Glegg was able to demand that her application and scholarship be withdrawn and that she had been informed by the University that Mr. Glegg was meeting with representatives of the University on May 3, 2016. She believed that Mr. Glegg would withdraw her application. Olivia deposed that she was seeking the declaration to demonstrate to the University that she had withdrawn from parental control and was able to make her own decisions regarding her own education.

[61] On April 28, 2016, pursuant to s. 65 of the Children’s Law Reform Act,[^5] Justice Kiteley declared that Olivia has withdrawn from the parental control of her father and her mother. Justice Kiteley declared that Olivia was an independent minor with all of the statutory and common law rights and privileges of a minor who has withdrawn from parental control.

[62] Unaware of the order made by Justice Kiteley on April 29, 2016, Mr. Glegg as a self-represented litigant personally brought an ex parte motion for an order that Ms. Van Den Hurk had breached Justice Miller’s order. In his supporting affidavit, he deposed that because of Ms. Van Den Hurk’s breach, he had contacted the Halton Regional Police on April 28, 2016 and asked that they apprehend Olivia, but he had been told that his apprehension rights expired six months after the date of the issuance of the March 4, 2015 order. He asked for an amendment of the March 4, 2015 order to extend his apprehension rights. Justice Fitzpatrick, also unaware Justice Kiteley’s order amended Justice Miller’s order to specify that the father's apprehension rights continued until July 17, 2017.

[63] Later that day, the police went to apprehend Olivia, but on being informed of the declaration granted by Justice Kiteley, the police took no action.

[64] On May 2, 2016, Mr. Glegg received a copy of the April 28, 2016 order made by Justice Kiteley. On the same day, he received Olivia’s file from the University of Miami. He now had evidence of Ms. Van Den Hurk’s involvement in the university enrollment application.

[65] On May 12, 2016, Mr. Glegg’s brought another motion for an order that Ms. Van Den Hurk had breached Justice Miller’s order. This motion came on before Justice Gibson. There was a cross motion by Ms. Van Den Hurk to set aside Justice Fitzpatrick’s order. There was a motion by Olivia for an order for legal representation and for an order to set aside the order of Justice Miller dated March 4, 2015. Justice Gibson reserved judgment.

[66] On June 2, 2016, Justice Gibson released his decision. He ordered that Ms. Mark of JFCY could represent Olivia. He ordered that Justice Miller’s order and Justice Ferguson’s order should be set aside given Justice Kiteley’s order that Olivia had withdrawn from parental control. He ordered that no person shall have custodial rights or access rights to Olivia. He dismissed Mr. Glegg’s motion for an order declaring that Ms. Van Den Hurk had breached the terms of the order of Justice Miller. At paragraph 21 of his decision, Justice Gibson wrote:

[Mr. Glegg’s] persistence with the motion amounted to a self-absorbed attempt to have a judicial imprimatur validating his particular perspective. Not only was this unnecessary given what has now transpired, it was ill-considered. [The father's] submissions are replete with exaggerated and pejorative language [...]

[67] On June 30, 2016, Mr. Glegg delivered a Notice of Appeal to the Court of Appeal from the order of Justice Gibson. At the same time, he was preparing a motion to have Justice Kiteley’s order set aside.

[68] On July 7, 2016, Olivia commenced an application for child support, which she brought forward in the fall of the year.

[69] Meanwhile, on July 17, 2016, Olivia turned 17 years old. On August 15, 2016, she moved into residence at the University of Miami.

[70] On August 18, 2016, Mr. Glegg moved before Justice Kiteley for, among other things, an order setting aside the order dated April 28, 2016. He also asked for an order providing that he have sole and primary custody of Olivia. His expressed plan was to have Olivia return to Ontario to complete Grade 12. At the hearing, Mr. Glegg was represented by Gary Joseph, Ms. Van Den Hurk was represented by Ms. Doris, and Olivia was represented by Mr. Mark and Ms. Chen.

[71] On August 22, 2016, Justice Kiteley dismissed Mr. Glegg’s motion. Justice Kiteley held that Mr. Glegg was not entitled to notice of Olivia’s application for a declaration. Justice Kiteley also held that after reviewing the abundant evidentiary record, which contained more than a dozen affidavits, including the details of the alleged abduction two years earlier in Florida, it was in Olivia’s best interest to make the declaration. On the merits, Justice Kiteley ruled that the court should not make an order that Mr. Glegg have custody of Olivia. Justice Kiteley reiterated her finding that Olivia was a child that had withdrawn from parental control.[^6]

[72] Mr. Glegg appealed Justice Kiteley’s decision. Meanwhile by Notices of Motion dated November 6, 2016 and December 19, 2016 in the child support proceedings, Mr. Glegg sought an order permitting the questioning of Ms. Van Der Hurk and of Mrs. Flores.

[73] In the child support proceedings, Mr. Glegg also sought an order that he be entitled to question Olivia. The request was unopposed and questioning of Olivia took place in Florida.

[74] As noted above, Mr. Glegg appealed the decisions of Justice Kiteley and of Justice Gibson to the Court of Appeal. The Court of Appeal heard the appeal on November 22, 2016, and it reserved judgment.

[75] Meanwhile, while the decision of the Court of Appeal was pending, by endorsements dated December 9, 2016 and January 4, 2017, Justice Kurz denied the questioning requests of Mr. Glegg.

[76] On January 16, 2017, Justice Kurz heard the motion by Olivia for child support. He also heard a cross-motion by Mr. Glegg. Mr. Glegg was seeking a judgment dismissing Olivia’s motion for child support. At the hearing of the motions, Mr. Glegg was represented by Mr. Joseph, and Olivia was represented by Mr. Mark and Ms. Chan. Justice Kurz reserved judgment.

[77] On February 6, 2017, Mr. Glegg brought a motion before Justice Kurz to reopen the evidence in the two motions. Justice Kurz dismissed the motion.[^7]

[78] On February 9, 2017, the Court of Appeal dismissed Mr. Glegg’s appeals from the orders of Justice Kiteley and Gibson.[^8] The court also dismissed his motion to admit fresh evidence.

[79] The Court of Appeal’s judgment was delivered by Justice Benotto (Justices Gillese and Roberts concurring). Justice Benotto held that Justice Kiteley had been wrong in ruling that Mr. Glegg was not entitled to notice of Olivia’s application. However, Justice Benotto concluded that Justice Kiteley had fully considered Olivia’s best interests and had satisfied herself that the declaration sought by Olivia was necessary and appropriate in all the circumstances. Justice Benotto stated that Justice Kiteley’s reasons were clear that the declaration was necessary to allow Olivia to attend university and to resolve the dispute with Mr. Glegg. Justice Benotto concluded that there was no procedural unfairness and that Justice Kiteley’s findings were supported by the evidence.

[80] Since the appeal of Justice Gibson’s order depended on overturning Justice Kiteley’s order, the Court of Appeal dismissed that appeal as well. Justice Benotto commented that Justice Gibson’s conclusions reinforced Justice Kiteley’s conclusion that Olivia’s best interests were indeed served by the declaration confirming that she had withdrawn from parental control.

[81] In dismissing Mr. Glegg’s motion to submit fresh evidence, Justice Benotto stated at paragraph 40 of her decision:

40. In my view, the father's continued pursuit of this issue confirms [Olivia’s] position that he is obsessed with controlling her and that this has blinded him to the reality that it is he, not her mother, who is the reason that she withdrew from parental control. It also reinforces the strength of the findings in the courts below.

[82] In dismissing Mr. Glegg’s appeals, Justice Benotto concluded her decision by stating at paragraph 67:

67. This appeal demonstrates the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors. The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge's discretion as she seeks to determine the child's best interests. When, as here, the child is months away from her eighteenth birthday, a continuation of litigation involving her indicates more about the parent's needs than the child's.

[83] I pause here in the narrative to observe that it is not the case as submitted by Mr. Glegg that the judicial findings in Ontario confirm that Olivia was abducted by her mother nor is it the case that as a result of the abduction in Florida that Mr. Glegg was granted sole custody. There has been no finding in Ontario that Olivia was abducted in Florida. At paragraph 24 of her decision, Justice Kiteley stated that she did not intend to make findings as to whether Olivia had been abducted. The Court of Appeal also did not make a finding. The most that can be said is that because of a breach of the Separation Agreement, the Ontario Court made temporary orders that Mr. Glegg have sole custody and then after a mediation the parties consented to the fifth amendment to the Separation Agreement that provided for the parents’ respective custody and access rights.

[84] I also observe because it is relevant to Mr. Glegg’s position that a fraud has been committed on the courts of Ontario that it is not the case, as submitted by him, that the 2014 incidents of the alleged abduction were not frankly disclosed to the Ontario when the matter of Olivia’s request for a declaration was before the court. Mr. Glegg repeatedly and continuously recounted the events in Fort Lauderdale. His complaint that the abduction was not disclosed by Ms. Van Den Hurk amounts no more to a complaint that Ms. Van Den Hurk’s recounts the events from a different perspective. From as early as the hearing before Justice Trimble, the competing narratives have been before the court and the competing narratives were in evidence before Justices Kiteley and Gibson and before the Court of Appeal.

[85] I further observe that if it was the case that incomplete and misleading materials were used in support of the ex parte motion before Justice Kiteley, there was a comprehensive record for the motion before her in August 2016, and I observe that for that motion, Justice Kiteley observed that it was Mr. Glegg who deliberately did not disclose the portions of the application file from the University of Miami in which Olivia, this time eloquently, articulated why she had sought early admission to the University and wished to be free of parental control.

[86] Returning to the narrative, after the Court of Appeal’s decision, on March 1, 2017, Justice Kurz dismissed Mr. Glegg’s motion for summary judgment and instead declared on a final basis that Olivia was entitled to child support. Justice Kurz held, however, that he was not in a position to make a final determination of the quantum of support, and he made an interim order that Mr. Glegg pay child $6,500 per month, retroactive to the commencement of the application, and he ordered that Mr. Glegg pay the fees and other expenses for Olivia to attend the University of Miami.[^9]

[87] Mr. Glegg appealed Justice Kurz’s order. On the appeal, Mr. Glegg was represented by Mr. Joseph and Olivia was represented by Mr. Mark and Ms. Chan. On September 18, 2017, Justice Gray granted the appeal. He held that there should not have been a summary judgment on the matter of child support, and he reduced the interim support to be paid by Mr. Glegg to $5,300 per month.[^10]

[88] I pause here in the narrative to observe that Mr. Glegg is incorrect in submitting that Justice Gray's ruling of October 2017 put an end to JFCY's misconduct. There has never been a ruling that JFCY misconducted itself, and Justice Gray’s ruling sent the matter of child support (liability and quantum) for a trial. What Justice Gray did was he made a temporary support order in favour of Olivia.

[89] On December 13, 2017, Olivia (then 18 years of age) withdrew her application for child support. The temporary orders of Justice Kurtz and Justice Gray are thus spent. JFCY's services for Olivia ended.

[90] The withdrawal of Olivia’s application for child support, however, did not bring a ceasefire to the family battles. It appears that Mr. Glegg sought a continuation of the hostilities.

[91] Mr. Glegg hired a criminal lawyer, and on March 27, 2018, Mr. Glegg swore an information alleging three criminal offences by Ms. Van Den Hurk. He alleged that contrary to s. 280 of the Criminal Code between August 24, 2014 and October 2, 2014, at Oakville and at Fort Lauderdale, Florida, Ms. Van Den Hurk had abducted Olivia. He alleged that contrary to s. 127 of the Criminal Code between October 10, 2015 and August 9, 2016 in Fort Lauderdale and Oakville she disobeyed court orders. He alleged that contrary to s. 131(1) of the Criminal Code, between April 18, 2016 and August 9, 2016, at Toronto and at Fort Lauderdale, Ms. Van Den Hurk did commit perjury by swearing false statements.

[92] In conjunction with his private prosecution, Mr. Glegg put out a press release.

[93] On May 9, 2018, the Crown intervened in the private prosecution and directed the clerk to stay the proceeding. Mr. Glegg, however, applied for an order setting aside the stay. On June 20, 2018, Justice Conlan dismissed the motion.[^11] Mr. Glegg has appealed Justice Conlan’s decision to the Ontario Court of Appeal. The appeal is scheduled to be argued on December 6, 2019.

[94] On May 15, 2018, Mr. Glegg filed a complaint with the Law Society of Ontario with respect to the conduct of Mr. Mark and Ms. Chan of JFCY. The Law Society investigated the complaint and closed its file on July 4, 2018.

[95] On July 24, 2018, in Florida, Mr. Glegg filed a complaint against Ms. Van Den Hurk and Mr. Peacey (“Defendants”) for personal injury damages, economic and non-economic damages, recovery of expenses and psychological damages in the total amount of $9.6 million (USD) from an intentional course of conduct by them to interfere with his custodial rights with respect to Olivia.

[96] Mr. Glegg’s complaint has been case managed by the Honorable Martin Bidwill, Judge of the Seventeenth Judicial Circuit Court of the State of Florida.

[97] In early 2019, in the Florida proceedings, Ms. Van Den Hurk and Mr. Peacey moved for a dismissal of the action on the grounds of forum non conveniens, collateral estoppel, and failure to state a cause of action. On February 2, 2019, Judge Bidwell dismissed the motion. His Reasons for Decision for his order were in their entirety as follows:

The Court finds that the defendants have failed to meet their burden of persuasion as to any of the factors set out in Kinney Systems v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996). Additionally, the defendants have failed to establish each of the factors necessary to establish a claim of collateral estoppel. Finally, the plaintiff have sufficiently pled the claims against Richard Peacey. The Court also denies the request to deliver a more definitive statement. The defendants shall file an answer within twenty (20) days from the date of this order.

[98] In June 2019, in the Florida proceedings, Mr. Glegg obtained a subpoena and letters rogatory for documentary production from Ms. Sapiano, Ms. Doris, Christen Seaton Burrison Hudani LLP, JFCY and Mr. Glass.

[99] The subpoena issued by the Florida Court with respect to Mr. Glass is set out below:

SUBPOENA FOR-PRODUCTION OF DOCUMENTS FROM.NON-PARTY THE STATE OF FLORIDA

TO: Records Custodian

Lorne Glass

Glass and Associates

YOU ARE HEREBY COMMANDED to appear at the Law Office of Gary Joseph, MacDonald & Partners, 155 University Ave. Suite 1700, Toronto, ON M5H 3B7, on or before 10 days from the date of service of this Subpoena, and to have with you at that time and place the following documents relating to OLIVIA GLEGG:

1. All retainer agreements, engagement letters, contracts, or records of employment between Lorne Glass and/or Lorne Glass and Associates (“Firm”) showing the terms and conditions of your office's consultation and/or representation of OLIVIA GLEGG or any person acting on her behalf for all matters in which the Firm was retained to provide services to or on behalf of OLIVIA GLEGG, with respect to all legal matters including consulting services and any initial consultation, from the date of the initial contact through August 31, 2017.

2. With respect to the matter(s) referenced in paragraph numbered one (1) above, any and all records reflecting time entries, including but not limited to daily time records, of any and all attorneys, paralegals and assistants working on this matter, together with any and all billing memoranda and bills rendered by the Firm on this matter, from the date of the initial contact through August 31, 2017. *** Attorney-Client Privileged/Work Product Privileged Information May Be Redacted ***

3. All records, including but not limited to payment records, receipts, credit card authorizations, cancelled checks, etc., evidencing payments or distributions made by or on behalf of OLIVIA GLEGG toward attorney fees (including any consultations), costs or retainers from the date of the initial contact through August 31, 2017.

4. All records, including but not limited to payment records, receipts, credit card authorizations, cancelled checks, etc., evidencing payments or distributions made by or on behalf of OLIVIA GLEGG toward professional and/or expert fees and costs rendered by third parties from the date of the initial contact through August 31, 2017. *** Attorney-Client Privileged/Work Product Privileged Information May Be Redacted ***

5. All records including names, dates, email addresses, phone numbers and call logs of communications with persons other than OLIVIA GLEGG in which you communicated in conjunction with your consultation and/or representation of OLIVIA GLEGG. ***Attorney-Client Privileged/Work Product Privileged Information May Be Redacted ***

6. All photographs, documents or tangible evidence provided to you by any person other than OLIVIA GLEGG in conjunction with your conjunction with your consultation and/or representation of OLIVIA GLEGG. *** Attorney-Client Privileged/Work Product Privileged Information May Be Redacted ***

7. In the event any document is withheld as privileged (attorney-client or work product), please provide a list ("privilege log") of the documents withheld in compliance with Fla. R. Civ. P. 1.280(b)(5) for subsequent judicial review and state the following information with respect to each document withheld:

a. The date appearing on the document and, if it has no date, the date or the approximate date on which it was prepared;

b. The title, label, code number, or file number of the documents;

c. The name and current address of the person who signed the document or, if it is not signed, the name and current address of the person who prepared the document;

d. The name and current address of the person to whom the document was directed and the person or persons to whom any copies of the document were directed;

e. A general description of the subject matter to which the document relates;

f. The name and current address of the person having present possession, custody, or control of the document; and

g. The grounds on which the document is being withheld.

These items will be inspected and may be copied at that time. You will not be required to surrender the original items. You may comply with this subpoena by providing legible copies of the items to be produced to the attorney whose name appears below, on or before the scheduled date of production. You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation. You may mail or deliver the copies to the attorney whose name appears on this subpoena and thereby eliminate your appearance at the time and place specified above. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whose name appears on this subpoena. This will not be a deposition; no testimony will be taken.

If you fail to (a) appear as specified; or (b) furnish the records instead of appearing as provided above; or (c) object to this subpoena, you may be in contempt of court. You are subpoenaed to appear by the attorney whose name appears below, and unless excused from this subpoena by this attorney or the court, you shall respond to this subpoena as directed.

[100] On July 10, 2019, Mr. Glegg brought the application now before the court to enforce the letters rogatory.

[101] In July 2019, Mr. Glegg commenced an action against Armando and Hazel Flores. He alleges that they conspired with Ms. Van Den Hurk and Mr. Peacey to thwart Mr. Glegg’s custodial rights and caused Olivia to leave her home and to apply for a declaration that she had withdrawn from parental control.

[102] On August 2, 2019, Mr. Glegg commenced an action against JFCY. He claims damages of $3.5 million for fraud, equitable fraud, conspiracy to commit fraud, inducing breach of contract, conspiracy to breach a contract, abuse of process, intrusion on seclusion, intentional infliction of mental and emotional suffering, and civil conspiracy. He alleges that JFCY knowingly mislead the court and conspired with Ms. Van Den Hurk to intentionally and knowingly breach Mr. Glegg’s custodial rights. Mr. Glegg alleges that but for the improper legal practices of JFCY, the Ontario Court system would almost certainly have continued to respect his parental rights.

[103] As noted above, Mr. Glegg’s application to enforce the Florida subpoena proceeded. Although as noted above, the application to enforce the letters rogatory has now been withdrawn as against JFCY, its position throughout was to oppose the application because Olivia had instructed JFCY to protect the confidentiality and the privilege associated with her client file. Further, its position throughout was that Mr. Glegg had failed to establish that this court ought to grant his application for letters rogatory. It submitted that he had failed to satisfy the elements of the test for the enforcement of letters rogatory, and in particular, JFCY submitted that the application was contrary to public policy.

[104] In the Florida proceedings, Mr. Glegg has brought a motion for a summary judgment in respect of his claims related to the alleged abduction of Olivia by Ms. Van Den Hurk in the autumn of 2014.

D. Mr. Glegg’s Submissions

[105] Mr. Glegg submits that the evidence he seeks is relevant. He says that Mr. Glass has evidence relevant to the Florida action, which is necessary for the trial. Mr. Glegg submits that the evidence sought is necessary to establish that Ms. Van Den Hurk and Mr. Peacey engaged in a civil conspiracy and committed civil fraud which was perpetrated on the Ontario court system through the use of Ontario lawyers and Ontario legal services to unlawfully interfere with his rights of sole custody of Olivia.

[106] He submits that Olivia’s wrongful removal from his home in April 2016 was facilitated through the coordinated efforts of Ontario lawyers who should have recognized that their legal services were being utilized for fraudulent purposes in violation of his custodial rights.

[107] Mr. Glegg submits that the evidence sought is not otherwise obtainable because Ms. Van Den Hurk and Mr. Peacey had denied involvement in Olivia’s departure from Mr. Glegg’s home in April 2018.

[108] Mr. Glegg submits that the order sought is not contrary to public policy. He says that any privileged information may be redacted from the documents sought as set out in the Letters Rogatory and the attached subpoenas.

[109] Mr. Glegg submits that solicitor and client privilege is protected because in the event that there was privileged material, Mr. Glass would be obliged only to provide a list (a "privilege log") of the documents withheld for subsequent judicial review to determine whether the documents are in truth privileged. The privilege log would identify the document by date, title, code number, signatory or drafter, the name and address of the drafter and recipient, a general description of the subject matter of the document, and the grounds on which the document is being withheld.

[110] Mr. Glegg adds that the order sought is not unduly burdensome and he is prepared to contribute to the costs, if any, with respect to the compilation and production of the documentation required up to $5,000 per Respondent.

E. Discussion and Analysis

(a) Letters Rogatory (Letters of Request)

[111] Section 60 of Ontario’s Evidence Act[^12] provides that where a foreign court has commissioned the taking of evidence for a purpose for which a letter of request could be issued under the rules of the Ontario court, the Ontario court may order the examination of the witness before the person appointed, and in the manner directed by the commission; and it can order the production of documents; and it may give directions as to the time and place of the examination and enforce the order as it would a local order. The Canada Evidence Act[^13] contains a comparable provision.[^14]

[112] The enforcement of Letters Rogatory (now called letters of request in Ontario) is based on the principle of comity of nations.[^15] In Morguard Investments Ltd. v. De Savoye,[^16] Justice La Forest defined comity as "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws”. As a matter of comity, the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction out of mutual deference and respect. A foreign request is given full force and effect unless it is contrary to the public policy of the jurisdiction to which the request is directed or otherwise prejudicial to its sovereignty or to its citizens.[^17]

[113] The enforcement of Letters Rogatory is discretionary.[^18] The requesting court’s decision is entitled to considerable deference and the court receiving the request does not sit as an appeal court from the decision of the requesting court.[^19]

[114] Nevertheless, although the domestic court considering whether to enforce Letters Rogatory does not function as an appellate court in respect of the foreign requesting court and will give deference to the conclusions of that court, the domestic court must independently reach its own conclusions based on the evidence proffered to determine whether the request complies with the law of the domestic court.[^20] In this last regard, the criteria for the enforcement of letter of request from a foreign jurisdiction are: (1) the evidence is relevant; (2) the evidence is necessary and will be adduced at trial or for a pre-trial hearing[^21], if admissible; (3) the evidence is not otherwise obtainable; (4) the order sought is not contrary to public policy; (5) the documents sought are identified with reasonable specificity; and (6) the order sought is not unduly burdensome, bearing in mind what the witnesses will be required to do, and produce, were the action to be tried.[^22]

[115] These factors are guideposts, not pre-conditions to the enforcement of a letter of request.[^23] The factor of the evidence being not otherwise available means that evidence of the same value cannot be obtained other than from the person to be examined.[^24] The unwillingness of a witness to testify voluntarily in a foreign proceeding may be taken into account in determining that the evidence would not otherwise be obtainable.[^25]

[116] The public policy test component of responding to a letter of request requires that the court consider whether the request imposes any limitation or infringement on Canadian sovereignty including an assessment of whether granting the request would give extra-territorial authority to foreign laws that violate relevant Canadian laws, would infringe on recognized Canadian moral or legal principles, or would impose an undue burden on or do prejudice to the individual whose evidence is requested.[^26]

[117] In addition to its role with respect to the enforcement of letters of request, the public policy defence is a factor in determining whether a domestic court should apply foreign law and whether a domestic court should enforce a foreign judgment. In all these contexts, in deference to the foreign court, what is contrary to the public policy of the domestic court is viewed narrowly. As a matter of public policy, where foreign law is applicable, Canadian courts will generally apply the foreign law even if its results are harsher or contrary to domestic law unless the foreign law is not consonant with the domestic system of justice and its fundamental values, which rarely has been established.[^27]

[118] For the foreign law judgment or order not to be applied or enforced, the foreign law must be contrary to the most basic and fundamental values of the domestic jurisdiction. If foreign law is to be refused effect on public policy grounds, the foreign law must violate some fundamental principle of justice, be repugnant to public or moral interests, or some deep-rooted tradition of the domestic jurisdiction.[^28] The public policy defence is narrow and it is directed at the concept of repugnant laws and not repugnant facts.[^29]

[119] In Beals v. Saldanha,[^30] which involved the enforcement of an extraordinarily high damages award in an abortive real estate case, Justice Major (Chief Justice McLachlin and Justices Gonthier, Bastarache, Arbour and Deschamps, concurring, Justices Iacobucci, Binnie and LeBel, dissenting) stated at paragraphs 71-72, 75-76:

71. The third and final defence is that of public policy. This defence prevents the enforcement of a foreign judgment which is contrary to the Canadian concept of justice. The public policy defence turns on whether the foreign law is contrary to our view of basic morality. As stated in Castel and Walker, supra, at p. 14-28:

... the traditional public policy defence appears to be directed at the concept of repugnant laws and not repugnant facts ....

72. How is this defence of assistance to a defendant seeking to block the enforcement of a foreign judgment? It would, for example, prohibit the enforcement of a foreign judgment that is founded on a law contrary to the fundamental morality of the Canadian legal system. Similarly, the public policy defence guards against the enforcement of a judgment rendered by a foreign court proven to be corrupt or biased.

73. The use of the defence of public policy to challenge the enforcement of a foreign judgment involves impeachment of that judgment by condemning the foreign law on which the judgment is based. It is not a remedy to be used lightly. The expansion of this defence to include perceived injustices that do not offend our sense of morality is unwarranted. The defence of public policy should continue to have a narrow application.

74. The award of damages by the Florida jury does not violate our principles of morality. The sums involved, although they have grown large, are not by themselves a basis to refuse enforcement of the foreign judgment in Canada. Even if it could be argued in another case that the arbitrariness of the award can properly fit into a public policy argument, the record here does not provide any basis allowing the Canadian court to re-evaluate the amount of the award. The public policy defence is not meant to bar enforcement of a judgment rendered by a foreign court with a real and substantial connection to the cause of action for the sole reason that the claim in that foreign jurisdiction would not yield comparable damages in Canada.

[120] In their dissenting judgments in Beals v. Saldanha, Justice Binnie, Justice Iacobucci concurring, did not address the public policy defence, but Justice Le Bel agreed with the majority that the defence was a narrow defence and not available in the circumstances of the Beals v. Saldanah case. He stated at paragraphs 211, 221-223 of his judgment:

211. A foreign judgment may be impeached on the basis that its recognition or enforcement would be contrary to public policy, that it was obtained by fraud, or that the foreign proceedings were contrary to natural justice. The burden is on the party raising one of these defences to prove that it applies; the foreign judgment is presumed to be valid, and there is a basic principle that the domestic court will not permit re-litigation of matters tried before the foreign court (J.-G. Castel and J. Walker, Canadian Conflict of Laws (5th ed. (loose-leaf)), at p. 14-24). At the same time, the receiving court has both the authority and the responsibility to uphold the essential values of the domestic legal system and to protect citizens under the protection of its laws from unfairness. The three impeachment defences are established situations where the domestic court will intervene and refuse to enforce the judgment because the law on which it is based or the way it was obtained is simply too offensive to local notions of what is just and reasonable.

212. In my view, the better approach is to continue to reserve the public policy defence for cases where the objection is to the law of the foreign forum, rather than the way the law was applied, or the size of the award per se. In other words, this defence should continue to be, as the trial judge put it, "directed at the concept of repugnant laws, not repugnant facts" (p. 144 (emphasis in original)). Public policy is potentially an expansive enough concept to subsume the other two defences; it is, of course, contrary to public policy in a broad sense to enforce a judgment that was fraudulently or unfairly obtained. But it is useful to maintain an analytical distinction between the three defences. Furthermore, the defence of public policy has long been associated with condemnation of the foreign jurisdiction's law. To extend it to cover situations where there is nothing objectionable about the foreign law but, rather, a defect in the way the law was applied might send the wrong message, one that conflicts with the norms of international cooperation and respect for other legal systems underlying the doctrine of comity.

213. In Boardwalk Regency Corp. v. Maalouf (1992), 1992 CanLII 7573 (ON CA), 88 D.L.R. (4th) 612, the Ontario Court of Appeal held that the public policy defence applies to laws [page510] that violate "conceptions of essential justice and morality" (p. 615). As an example, the court cited a contract relating to the corruption of children (p. 622). It emphasized that a mere difference between the policy choices reflected in the foreign law and those that prevail in Canada is not enough to engage the defence (pp. 615-16). This approach reflects the principle that diversity among the legal systems of the world should be respected, while at the same time establishing the limits of that principle. A law that offends fundamental or essential moral precepts will not be enforced. While the question is always whether the foreign law violates Canadian ideas of essential justice and morality, the relevant precepts of morality and justice are so basic that they can be said to have a universal character and will generally be respected by all fair legal systems.

214. The defence of public policy should not, however, be reserved for such shockingly immoral laws that one would be hard-pressed to find a non-hypothetical example of the kind of law that would engage it. In my opinion, there is more work for this defence to do. It should also apply to foreign laws that offend basic tenets of our civil justice system, principles that are widely recognized as having a quality of essential fairness. Among these, I would include the idea that civil damages should only be awarded when the defendant is responsible for harm to the plaintiff, and the rule that punitive damages are available when the defendant's conduct goes beyond mere negligence and is morally blameworthy in some way. These are basic principles of justice that are reflected in some form in most developed legal systems, although the particular form in which they are expressed may vary.

2. Public Policy, Letters Rogatory, and Actions to Enforce Parental Rights

[121] As I shall now explain, in my opinion, applying the above law to the circumstances of the immediate case, leads to the conclusion that Mr. Glegg’s application should be dismissed on grounds of public policy.

[122] I begin the analysis by noting that Mr. Glegg’s action in Florida would be forbidden in Canada and most particularly it would be forbidden in Ontario, where Mr. Glegg resides. In my opinion, it would be contrary to public policy to enforce Letters Rogatory from a foreign court in aid of a cause of action that is forbidden in Ontario.

[123] In the famous case of Frame v. Smith,[^31] Justice La Forest for the Supreme Court of Canada (Chief Justice Dickson and Justices Beetz, McIntyre and Lamer concurring; Justice Wilson dissenting) decided that a parent could not sue his or her spouse and also third parties for interfering with and harming the parent’s relationship with his or her children and denying him or her the opportunity to give the children parental love, care, and guidance.[^32]

[124] The facts of Frame v. Smith are similar to the facts of the immediate case with respect to the interference with parental rights and the allegation that a parent lost the opportunity to provide parental love, care and guidance. In Frame v. Smith, Richard and Eleanor married and had three children. The couple separated and a Manitoba court granted Eleanor custody of the children and generous access rights to Richard. Eleanor, however, remarried and changed the names of the children, and she moved between Manitoba, Ontario, and Texas. She made access to the children impossible. She changed the children’s religion and told the children that Richard was not their father. She forbade telephone conversations and intercepted his letters to them. Richard incurred expense and suffered emotional and psychic distress from his exile from his children. He sued Eleanor and her second husband for damages flowing from their interference with the relationship he had with his children. He sought recovery of his out-of-pocket expenses (estimated at $25,000) and general and punitive damages of $1.0 million and $500,000 respectively. The endorsement on his writ of summons stated:

The Plaintiff's claim is for damages as a result of the defendants' failure to permit the plaintiff to exercise the right to access to his children or alternatively, damages relating to the defendants' wilful denial or refusal to permit the plaintiff from exercising his lawful right to access to his children or alternatively, damages arising from the defendants' conspiracy to commit acts in order to prevent the plaintiff from exercising his legal rights and for damages related to the plaintiff's loss of opportunity to develop a meaningful human relationship and have social companionship and contact with his children and to provide and give to the said children proper parental love, care and guidance.

[125] On a motion to determine whether Richard had a reasonable cause of action, Justice La Forest concluded that he did not. Justice La Forest stated that historically, the common law had given little protection to the interests of parents in the love and companionship of their children. There were the pecuniary actions of enticement, harbouring, seduction, and loss of services, but these actions had been abolished in Ontario by the Family Law Reform Act [^33] stated that while it might have been possible for the common law to devise a tort to meet the situation, and that a few American states had done so, there were good reasons that Canadian law had not developed in that direction. In paragraphs 9 and 10 of his judgment, he stated:

9. It would, of course, be possible for the courts to devise a new tort to meet the situation. And the temptation to do so is clearly present, for one cannot help but feel sympathy for the appellant and others in like situations. But there are formidable arguments against the creation of such a remedy. I have already mentioned the undesirability of provoking suits within the family circle. The spectacle of parents not only suing their former spouses but also the grandparents, and aunts and uncles of their children, to say nothing of close family friends, for interfering with rights of access is one that invites one to pause. The disruption of the familial and social environment so important to a child's welfare may well have been considered reason enough for the law's inaction, though there are others.

10. There are also serious difficulties in defining such a tort. At what stage and for what actions should one be able to claim interference with access? Is advice or encouragement to a child sufficient? It is notorious that free, and not always disinterested and wise advice abounds in a family setting. There are degrees of interference, of course, and some interference is malicious, and some is not, but where the line is to be drawn defies specification. It seems to me that there is no clear boundary between ordinary interruptions to access and sustained, putatively actionable interference, and where the point is reached where permissible advice intended for the child's benefit stops and malicious obstruction begins is virtually impossible to divine. This is especially so because, as Alan Milner, ibid., at p. 429, has pointed out, "when there is dislike, a desire to injure is never far behind." Besides, the awarding of damages will do little to bring back love and companionship, but it may, in some cases, well deprive a child of the support he or she might otherwise obtain from a custodial parent and relatives. If, on the other hand, the action is generally limited to the recovery of expenses, it will be of little use to most parents given the costs, in time and money, of court actions. These and other practical considerations are sufficient to raise serious doubts about whether an action at law is the appropriate way to deal with this type of situation. This probably explains the reticence of the courts in finding a remedy at common law.

[126] Justice La Forest then stated that, in any event, any judicial initiative had been pre-empted by legislative action. He stated at paragraphs 11 and 12 of his judgment:

11. But what really determines the matter, in my view, is that any possible judicial initiative has been overtaken by legislative action. In all the provinces (and at the federal level for that matter), legislation has been enacted to deal with the modern phenomenon of frequent family breakdowns and, in particular, to provide for custody of, and access to children. In Ontario, the Children's Law Reform Act, R.S.O. 1980, c. 68, as amended by the Children's Law Reform Amendment Act, 1982, S.O. 1982, c. 20, now deals with the matter in a comprehensive manner. In particular, the courts are given the role of ensuring that issues involving custody of, and access to children are determined on the basis of the best interests of the children (see ss. 19(a), 24(1)). Numerous remedies are provided for the enforcement of orders granting custody or access. The court can give such directions as it considers appropriate for the supervision of those having custody of, or access to the children (s. 35). It may, on application, make an order restraining any person from molesting, annoying or harassing the applicant or a child in the applicant's custody (s. 36). It may also empower the applicant or someone on his or her behalf to apprehend a child to give effect to the applicant's entitlement to custody or access (s. 37(1)). In certain circumstances, it may direct the sheriff or the police to do so (s. 37(2)), and empower them to enter and search any place where they have reasonable and probable grounds for believing the child may be, and to use such assistance or force as may be reasonable in the circumstances (s. 37(5)). The court may also take steps to prevent a child from being removed from the province (s. 38). In addition to its powers in respect of contempt, the court is empowered to impose a fine or imprisonment for wilful contempt of, or resistance to its process or orders in respect of custody or access (s. 39).

12. It seems obvious to me that the Legislature intended to devise a comprehensive scheme for dealing with these issues. If it had contemplated additional support by civil action, it would have made provision for this, especially given the rudimentary state of the common law.

[127] Justice La Forest concluded that Richard had not established that he had a cause of action in tort. Further, and for similar reasons, Justice La Forest concluded that Richard did not have a cause of action for breach of fiduciary duty.

[128] In the immediate case, Mr. Glegg is purporting to use Florida law to do what Canadian law and most particularly Ontario law forbids. The pecuniary tort causes of action of enticement, harbouring, seduction, and loss of services have long been abolished in Ontario. The Supreme Court of Canada forbade the development of a new tort or a cause of action for breach of fiduciary duty as foreclosed by the comprehensive legislative scheme of what is now the Family Law Act. As Justice La Forest predicted and as the immediate case demonstrates the spectacle of parents not only suing their former spouses but also the grandparents, and aunts and uncles of their children, to say nothing of close family friends, for interfering with parental rights is one that invites one to pause because of the disruption of the familial and social environment so important to a child's welfare. Causes of action of this nature are repugnant to the values of Canadian society and to the fundamental policy of family law legislation that privileges above all the best interests of the child.

[129] In the immediate case, the cause of action and the advancement of it by Letters Rogatory and a subpoena are repugnant to the decisions of the Ontario courts that, to repeat what Justice Benotto said, recognize the importance of incorporating the voice of the child in all matters concerning minors. Moreover, it is also at least odd in the immediate case that the Florida court assumed jurisdiction in aid of a foreign claimant whose central allegation is that a fraud was committed on a court in Ontario by Ontario lawyers and that but for the fraud the Ontario courts would not have declared Olivia free of parental control. One would have thought that as a matter of comity, order, and fairness, it would not be appropriate for a foreign court to support this collateral attack on the decisions of the domestic court and it would be inappropriate for the foreign court to rule on the probity of proceedings in Ontario.

[130] In any event, the truth of the matter is that Mr. Glegg’s parental rights were protected by the comprehensive family law regime in Ontario, and he repeatedly exercised those rights before the courts of Ontario. I appreciate that because of Olivia’s withdrawal from parental control and her subsequent abandonment of her application for support may, and may still, require some adjustment to the orders made in Ontario, but these are matters in the first instance for Ontario law and for Ontario court’s to resolve under its comprehensive family law legislation.

[131] I understand from Justice La Forest’s judgment in Frame v. Smith that most states in the United States have laws consistent with the Canadian law that there is no cause of action for damages for interference with parental rights. Florida apparently is one of the few states that allows such actions. Florida of course as a sovereign state is entitled to make this policy decision for the citizens of its jurisdiction, but it is a policy decision that is contrary to the fundamental values of the Canadian legal system for its citizens. In the immediate case, granting the request of the Florida court would give extra-territorial authority to foreign laws that violate relevant Canadian laws and would infringe on recognized Canadian legal principles that privilege the best interests of children over the parental rights of their parents.

[132] As Justices Major and LaBel noted in Beals v. Saldanha, the three impeachment defences are established situations where the domestic court will intervene and refuse to enforce the foreign law because the law on which it is based or the way it was obtained is simply too offensive to local notions of what is just and reasonable. In my opinion, that is the situation in the case at bar and it follows that Mr. Glegg’s application should be dismissed on this ground alone.

[133] In the next part of these Reasons for Decision, I shall consider whether there are other reasons why the court ought not exercise its discretion to grant Mr. Glegg’s application.

3. Public Policy and Solicitor and Client Communications

[134] As I shall next explain, there is a second public policy reason for dismissing Mr. Glegg’s application. In the immediate case, the second public policy reason is associated with solicitor and client privilege and also with solicitor and client confidentiality, which are related and overlapping but still distinct legal notions. In my opinion, my Glegg’s application should be dismissed because of its interference with solicitor and client privilege and with client confidentiality, which are notions fundamental to the administration of justice and to the Canadian legal system.

[135] Solicitor-client privilege concerns communications between a lawyer and his or her client. It is a fundamental right and a substantive rule of law.[^34] To ensure public confidence in the legal system and the effectiveness of the privilege, solicitor-client privilege approaches an absolute right, rather than one that is decided on a case-by-case basis.[^35] To qualify for solicitor-client privilege, a communication must be: (1) between a client and his or her lawyer who must be acting in a professional capacity as a lawyer; (2) given in the context of obtaining legal advice; and (3) intended to be confidential.[^36]

[136] Solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.[^37] The privilege applies to information about the legal problem that a lawyer requires from the potential client to decide if the lawyer will agree to act, and remains even if the lawyer does not agree to advise or act.[^38] For the solicitor-client privilege to attach, the lawyer must be acting in his or her role of a lawyer, and solicitor-client privilege does not protect advice on purely business matters even where the advice is provided by a lawyer.[^39] The privilege applies to information given about the client's ability to pay and any other information which a lawyer is reasonably entitled to require before accepting the retainer.[^40] Information about lawyers' billings are protected by privilege when the bills contain information regarding the content of communications between the lawyer and his or her client, both about the legal advice given and about the terms for payment of the lawyer's fees or the financial situation of the person who consults the lawyer.[^41] Administrative information relating to the solicitor-client relationship including the identity of the person paying the lawyer's bills is presumptively privileged; however, the presumption may be rebutted by evidence showing: (a) that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications; or (b) that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client.[^42] Further, information about funds held by the lawyer in respect of the client’s transactions in which the identity of the participants has become known is not privileged because the privilege applies only to communications and records pertaining to the client’s transaction directed through the lawyer’s trust account are evidence of actions not communications.[^43]

[137] Solicitor-client privilege may apply to communications between a lawyer and a third party who is a surrogate of the client for the purposes of obtaining legal advice.[^44] In the leading case of General Accident Assurance Co. v. Chrusz,[^45] Justice Doherty stated that where a third party serves as a messenger, translator, amanuensis or conduit for instructions for the client to the lawyer, the communications will be privileged. Further, communications from a third party assembling and explaining information provided by the client for the purposes of obtaining legal advice will be privileged. Justice Doherty stated that, for privilege to be available, the third party’s function must be central to the maintenance or operation of the lawyer and client relationship and that a representative employed to obtain legal advice would be covered by privilege, but a representative employed to perform work relating to the obtaining of legal advice would not be covered.

[138] Related to but distinct from solicitor-client privilege, lawyers have professional and ethical responsibilities to keep the confidences of their clients. Section 3.3-1, Section 3.3-1.1, and 3.5-2 of the Law Society of Ontario’s Rules of Professional Conduct are set out in Schedule “A” to these Reasons for Decision.

[139] In the immediate case, Mr. Glegg submits that he does not seek documents that are subject to solicitor-client privilege and that in any event assertions of privilege are protected by a procedure in which the document is identified for examination by the court to determine the veracity of the claim for privilege. With respect, in the circumstances of the case, this submission is sophistry.

[140] Mr. Glegg’s submission does not respect Mr. Glass’ responsibilities to keep Olivia’s confidences and her right to claim privilege over her communication to receive legal advice. In the immediate case the disclosure by Mr. Glass of, for instance, all records including names, dates, email addresses, phone numbers and call logs of communications with persons other than Olivia in conjunction with his representation of Olivia would be both a breach of confidence and also a violation of solicitor-client privilege. In the circumstances of the immediate case, the disclosure by Mr. Glass of a privilege log would be a breach of confidence and a violation of solicitor-client privilege. Mr. Glass has duties of loyalty and confidentiality to Olivia that do not permit him without Olivia’s consent to make these disclosures.

[141] In this last regard, I do not suggest that a “privilege log” approach might not work in other cases with respect to confidential but not privileged documents, particularly when the letters of request concern document in the possession of a non-lawyer. What I am saying is that a privilege log approach is no answer in the immediate case.

[142] In the immediate case, if the information being sought pursuant to the Letters Rogatory fall in the territory of administrative information relating to the solicitor-client relationship including the identity of the person paying the lawyer's bills that information is presumptively privileged and Mr. Glegg has not rebutted the presumption by evidence showing that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications or that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client.

[143] In these circumstances, once again with deference to the request of the Florida court, it would not be on the grounds of public policy appropriate to exercise the court’s discretion and accede to the court’s request.

F. Conclusion

[144] For the above reasons, I dismiss Mr. Gregg’s application without costs. I direct Mr. Glegg to deliver forthwith a copy of these Reasons to the Honorable Judge Martin Bidwill of the Seventeenth Judicial Circuit Court in Broward County, Fort Lauderdale, Florida, U.S.A. of the forthwith. Further, I direct Mr. Glegg to deliver forthwith a copy of these Reasons to the Court of Appeal for an appeal in the criminal proceedings against Ms. Van den Hurk that is scheduled for hearing on December 6, 2019.

Perell, J.

Released: November 18, 2019

SCHEDULE “A”

Section 3.3-1, Section 3.3-1.1, and 3.5-2 of the Law Society of Ontario’s Rules of Professional.

Confidential Information

3.3-1 A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless

(a) expressly or impliedly authorized by the client;

(b) required by law or by order of a tribunal of competent jurisdiction to do so;

(c) required to provide the information to the Law Society; or

(d) otherwise permitted by rules 3.3-2 to 3.3-6

Commentary

[1] A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them. At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client's part, matters disclosed to or discussed with the lawyer will be held in strict confidence.

[2] This rule must be distinguished from the evidentiary rule of lawyer and client privilege, which is also a constitutionally protected right, concerning oral or documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge.

[3] A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.

[4] A lawyer also owes a duty of confidentiality to anyone seeking advice or assistance on a matter invoking a lawyer's professional knowledge, although the lawyer may not render an account or agree to represent that person. A solicitor and client relationship is often established without formality. A lawyer should be cautious in accepting confidential information on an informal or preliminary basis, since possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter. (See Section 3.4 Conflicts.)

[5] Generally, unless the nature of the matter requires such disclosure, a lawyer should not disclose having been:

(a) retained by a person about a particular matter; or

(b) consulted by a person about a particular matter, whether or not the lawyer-client relationship has been established between them.

[6] A lawyer should take care to avoid disclosure to one client of confidential information concerning or received from another client and should decline employment that might require such disclosure.

[7] Sole practitioners who practise in association with other licensees in cost-sharing, space- sharing or other arrangements should be mindful of the risk of advertent or inadvertent disclosure of confidential information, even if the lawyers institute systems and procedures that are designed to insulate their respective practices. The issue may be heightened if a lawyer in the association represents a client on the other side of a dispute with the client of another licensee in the association. Apart from conflict of interest issues such a situation may raise, the risk of such disclosure may depend on the extent to which the licensees' practices are integrated, physically and administratively, in the association.

[8] A lawyer should avoid indiscreet conversations, even with the lawyer's spouse or family, about a client's affairs and should shun any gossip about such things even though the client is not named or otherwise identified. Similarly, a lawyer should not repeat any gossip or information about the client's business or affairs that is overheard or recounted to the lawyer. Apart altogether from ethical considerations or questions of good taste, indiscreet shop-talk between lawyers, if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client. Moreover, the respect of the listener for lawyers and the legal profession will probably be lessened.

[8.1] Although the rule may not apply to facts that are public knowledge, nevertheless, the lawyer should guard against participating in or commenting on speculation concerning the client's affairs or business.

[9] In some situations, the authority of the client to disclose may be inferred. For example, some disclosure may be necessary in court proceedings, in a pleading or other court document. Also, it is implied that a lawyer may, unless the client directs otherwise, disclose the client's affairs to partners and associates in the law firm and, to the extent necessary, to administrative staff and to others whose services are used by the lawyer. But this implied authority to disclose places the lawyer under a duty to impress upon associates, employees, and students and other licensees engaged under contract with the lawyer or with the firm of the lawyer the importance of non-disclosure (both during their employment and afterwards) and requires the lawyer to take reasonable care to prevent their disclosing or using any information that the lawyer is bound to keep in confidence.

[10] The client's authority for the lawyer to disclose confidential information to the extent necessary to protect the client's interest may also be inferred in some situations where the lawyer is taking action on behalf of the person lacking capacity to protect the person until a legal representative can be appointed. In determining whether a lawyer may disclose such information, the lawyer should consider all circumstances, including the reasonableness of the lawyer's belief that the person lacks capacity, the potential harm that may come to the client if no action is taken, and any instructions the client may have given to the lawyer when capable of giving instructions about the authority to disclose information. Similar considerations apply to confidential information given to the lawyer by a person who lacks the capacity to become a client but nevertheless requires protection.

[11] A lawyer may have an obligation to disclose information under rules 5.5-2, 5.5-3 and 5.6-3 (Security of Court Facilities). If client information is involved in those situations, the lawyer should be guided by the provisions of this rule.

[11.1] The fiduciary relationship between a lawyer and a client forbids the lawyer or a third person from benefiting from the lawyer's use of a client's confidential information. If a lawyer engages in literary works, such as a memoir or autobiography, the lawyer is required to obtain the client's or former client's consent before disclosing confidential information.

Justified or Permitted Disclosure

3.3-1.1 When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall disclose confidential information, but the lawyer shall not disclose more information than is required.

3.3-2 [FLSC - not in use]

3.3-3 A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.

Commentary

[1] Confidentiality and loyalty are fundamental to the relationship between a lawyer and a client because legal advice cannot be given and justice cannot be done unless clients have a large measure of freedom to discuss their affairs with their lawyers. However, in some very exceptional situations identified in this rule, disclosure without the client's permission might be warranted because the lawyer is satisfied that truly serious harm of the types identified is imminent and cannot otherwise be prevented. These situations will be extremely rare.

[2] The Supreme Court of Canada has considered the meaning of the words "serious bodily harm" in certain contexts, which may inform a lawyer in assessing whether disclosure of confidential information is warranted. In Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455 at paragraph 83, the Court observed that serious psychological harm may constitute serious bodily harm if it substantially interferes with the health or well-being of the individual.

[3] In assessing whether disclosure of confidential information is justified to prevent death or serious bodily harm, a lawyer should consider a number of factors, including

(a) the likelihood that the potential injury will occur and its imminence;

(b) the apparent absence of any other feasible way to prevent the potential injury; and

(c) the circumstances under which the lawyer acquired the information of the client's intent or prospective course of action.

[4] How and when disclosure should be made under this rule will depend upon the circumstances. A lawyer who believes that disclosure may be warranted should seek legal advice. When practicable, a judicial order may be sought for disclosure.

[5] If confidential information is disclosed under rule 3.3-3, the lawyer should prepare a written note as soon as possible, which should include: […]

[5.1] ….

Preservation of Client's Property

3.5-1 [FLSC - not in use]

3.5-2 A lawyer shall care of a client's property as a careful and prudent owner would when dealing with like property and shall observe all relevant rules and law about the preservation of a client's property entrusted to a lawyer.

Commentary

[1] The duties concerning safekeeping, preserving, and accounting for clients' monies and other property are set out in the by-laws made under the Law Society Act.

[2] These duties are closely related to those regarding confidential information. A lawyer is responsible for maintaining the safety and confidentiality of the files of the client in the possession of the lawyer and should take all reasonable steps to ensure the privacy and safekeeping of a client's confidential information. The lawyer should keep the client's papers and other property out of sight as well as out of reach of those not entitled to see them and should, subject to any rights of lien, promptly return them to the client upon request or at the conclusion of the lawyer's retainer.

[3] [FLSC - not in use]

[4] If the lawyer withdraws from representing a client, the lawyer is required to comply with the rules in Section 3.7 (Withdrawal from Representation).

COURT FILE NO.: CV-19-00623442-0000

DATE: 2019/11/18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT GLEGG

Applicant

• and -

LORNE GALSS, CHRISTINA DORIS/CHRISTEN SEATON BURRISON HUDANI LLP, JFCY/LEGAL AID ONTARIO, and LINDA SAPIANO

Respondents

REASONS FOR DECISION

PERELL J.

Released: November 18, 2019

[^1]: Ms. Doris’ firm of Christen Seaton Burrison Hudani LLP, formerly Wilson Christen LLP, is also a respondent.

[^2]: 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99.

[^3]: Blank v. Canada (Department of Justice), 2006 SCC 39; R. v. McClure, 2001 SCC 14; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455; Descoteaux v. Mierzwinski, [1982] S.C.R. 860; Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353; Solosky v. R., 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821.

[^4]: Glegg v. Glegg, 2014 ONSC 5679.

[^5]: R.S.O. 1990, c. C.12.

[^6]: Re Glegg, 2016 ONSC 5292.

[^7]: Glegg v. Glegg, 2017 ONCJ 102.

[^8]: R.G. v. K.G, 2017 ONCA 108.

[^9]: O.G. v. R.G., 2017 ONCJ 153.

[^10]: O.G. v. R.G., 2017 ONSC 6490

[^11]: R. v. Glegg, 2018 ONSC 3861.

[^12]: R.S.O. 1990, c. E.23.

[^13]: R.S.C. 1985, c. C-5, s. 46.

[^14]: Borelli v. Tam, [2006] O.J. No. 3714 (S.C.J.).

[^15]: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 42; AstraZeneka L.P. v. Wolman, 2009 CanLII 69793 (ON SC), [2009] O.J. No. 5344 at para. 17 (S.C.J.); R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392 at para. 18.

[^16]: 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077 at para. 31.

[^17]: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264; Connecticut Retirement Plans and Trust Funds v. Buchan, 2007 ONCA 462, [2007] O.J. No. 2492 (C.A.); R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392; Gulf Oil Corp. v. Gulf Canada Ltd., 1980 CanLII 192 (SCC), [1980] 2 S.C.R. 39

[^18]: Presbyterian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822 (C.A.).

[^19]: Azcar v. Royal Bank of Canada, 2018 ONSC 4048 at para. 16 (Ont. S.C.J.); Triexe Management Group Inc. v. Fieldturf International Inc., [2005] O.J. No. 4359 at para 21(Ont. S.C.J.).

[^20]: Aker Biomarine AS v. KGK Synergize Inc., 2013 ONSC 4897 at para. 26; Connecticut Retirement Plans & Trust

Funds v. Buchan, 2007 ONCA 462 at para. 13; Presbyterian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822 at para. 32 (C.A.); Fecht v. Deloitte & Touche (1996), 1996 CanLII 11782 (ON SC), 28 O.R. (3d) 188 (H.C.J.), aff'd (1997) 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417 at para. 18 (C.A.).

[^21]: Azcar v. Royal Bank of Canada, 2018 ONSC 4048 at para. 30; Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 63.

[^22]: Intelsat USA Sales LLC v. Hyde, 2015 ONSC 5680; Aker Biomarine AS v. KGK Synergize Inc., 2013 ONSC 4897; Lafarge Canada Inc. v. Khan (2008), 2008 CanLII 6869 (ON SC), 89 O.R. (3d) 619 (S.C.J.); Connecticut Retirement Plans & Trust Funds v. Buchan, 2007 ONCA 462; MAN Aktiengesellschaft v. Valentini (2006), 2006 CanLII 23922 (ON SC), 81 O.R. (3d) 680 (S.C.J.); Presbyterian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822 (C.A.); Borelli v. Tam, [2006] O.J. No. 3714 (S.C.J.); Presbyterian Church of Sudan v. Tallisman Energy Inc., 2005 ABQB 920; Safety-Kleen Corp. v. Kroeze, [2003] O.J. No. 4718 (S.C.J.); OptiMight Communications, Inc. v. Innovance, Inc., 2002 CanLII 41417 (ON CA), [2002] O.J. No. 577 (C.A.); King v. KPMG, 2003 CanLII 49333 (ON SC), [2003] O.J. No. 2881 (S.C.J.); Fecht v. Deloitte & Touche (1996), 1996 CanLII 11782 (ON SC), 28 O.R. (3d) 188 (H.C.J.), aff'd (1997) 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417 (C.A.); Re Friction Division Products Inc. v. E. I. Du Pont de Nemours & Co. (No. 2) (1986), 1986 CanLII 2827 (ON SC), 56 O.R. (2d) 722 (H.C.J.).

[^23]: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at paras. 56-71; Disabatino v. National Gallery of Canada, 2016 ONSC 4656.

[^24]: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 64; McFadden Lyon Rouse LLC v. Lookin, 2012 ONSC 2243.

[^25]: Ontario Public Service Employees Union Pension Trust Fund (Trustees of) v. Clark (2005), 2005 CanLII 51027 (ON SC), 77 O.R. (3d) 38 (S.C.J.), affd 2006 CanLII 20839 (ON CA), [2006] O.J. No. 2475 (C.A.).

[^26]: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 58; Treat America Ltd. v. Nestle Canada Inc., 2011 ONCA 560 at para. 12; France (Republic) v. De Havilland Aircraft of Canada Ltd. (1991), 1991 CanLII 7180 (ON CA), 3 O.R. (3d) 705 at para. 37 (C.A.).

[^27]: Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416 at paras. 71-77; Society of Lloyd's v. Meinzer (2001), 2001 CanLII 8586 (ON CA), 55 O.R. (3d) 688 (C.A.), leave to appeal to the S.C.C. ref’d *; United States of America v. Levy, [2002] O.J. No. 2298 (S.C.J.); United States of America v. Ivey (1995), 1995 CanLII 7241 (ON SC), 26 O.R. (3d) 533 (Gen. Div.); Boardwalk Regency Corp. v. Maalouf (1992), 1992 CanLII 7528 (ON CA), 6 O.R. (3d) 737 (C.A.); Sigurdson v. Farrow (1981), 1981 CanLII 1062 (AB KB), 15 Alta. L.R. (2d) 180 (Q.B.); Block Bros. Realty Ltd. v. Mollard and Detra Holdings Ltd. (1981), 1981 CanLII 504 (BC CA), 27 B.C.L.R. 17 (C.A.); Canadian Acceptance Corp. Ltd. v. Matte (1957), 1957 CanLII 155 (SK CA), 9 D.L.R. (2d) 304 (Sask. C.A.); National Surety Co. v. Larsen, 1929 CanLII 265 (BC CA), [1929] 4 D.L.R. 918 (B.C.C.A.).

[^28]: Society of Lloyd's v. Meinzer (2001), 2001 CanLII 8586 (ON CA), 55 O.R. (3d) 688 (C.A.), leave to appeal to the S.C.C. ref’d *; United States of America v. Ivey (1995), 1995 CanLII 7241 (ON SC), 26 O.R. (3d) 533 (Gen. Div.).

[^29]: Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416 at para. 71; Stern Estate v. Solehdin, 2010 ONSC 1012, [2010] O.J. No. 863 at para. 47

[^30]: 2003 SCC 72, [2003] 3 S.C.R. 416.

[^31]: 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99.

[^32]: See also Schrenk v. Schrenk (1981), 1981 CanLII 1615 (ON SC), 32 O.R. (2d) 122 (H.C.J.), aff’d (1982), 1982 CanLII 2123 (ON CA), 36 O.R. (2d) 480 (C.A.).

[^33]: R.S.O. 1980, c. 152, s. 69(4).

[^34]: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860; Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353; Canada v. Solosky, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821.

[^35]: Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, affg (2003), 2003 CanLII 8701 (ON CA), 63 O.R. (3d) 97 (C.A.); Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445.

[^36]: R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] S.C.J. No. 43, [1982] 1 S.C.R. 860.

[^37]: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445 at para. 35.

[^38]: Ontario (Securities Commission) v. Greymac Credit Corp. (1983), 1983 CanLII 1894 (ON SC), 41 O.R. (2d) 328 at para. 11 (Div. Ct.); Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860.

[^39]: R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565 at para. 50.

[^40]: Ontario (Securities Commission) v. Greymac Credit Corp. (1983), 1983 CanLII 1894 (ON SC), 41 O.R. (2d) 328 at para. 11 (Div. Ct.); Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860.

[^41]: Maranda v. Richer, 2003 SCC 67 at para. 22; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860.

[^42]: R. v. Singh, 2016 ONCA 108; Chiang (Trustee of) v. Chiang, 2014 ONSC 2651 at para. 96; Re Kaiser, 2012 ONCA 838; Cunningham v. Lilles, 2010 SCC 10; Ontario (Attorney General) v. Ontario (Assistant Information and Privacy Commissioner), 2005 CanLII 6045 (ON CA), [2005] O.J. No. 941 (C.A.); Maranda v. Richer, 2003 SCC 67 (S.C.C.).

[^43]: Ontario (Securities Commission) v. Greymac Credit Corp. (1983), 1983 CanLII 1894 (ON SC), 41 O.R. (2d) 328 at paras. 23-24 (Div. Ct.).

[^44]: Susan Hosiery Ltd. v. Minister of National Revenue, 1969 CanLII 1540 (CA EXC), [1969] 2 Ex. C.R. 27 (Ex. Ct.); Hydro-One Network Services Inc. v. Ontario (Ministry of Labour), [2002] O.J. No. 4370 (S.C.J.).

[^45]: (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321 at 353-59 (C.A.).