Court File and Parties

ONTARIO Court File Number: FS-17-21818-00 CV-18-00607821 Superior Court of Justice at 393 University Avenue, 10th Floor Toronto, ON M5G 1E6

Date: March 30, 2020

Applicant(s): T.O.E. Present: S. Zeitz, Counsel

Respondent(s): I.S. Present: C. Wagman, Counsel

Before: E.L. Nakonechny, J.

Order to go in accordance with minutes of settlement or consent filed.

[1] Factums required on all motions 2 days before.

Endorsement

[1] The Applicant brought a motion before me on February 26, 2020 for production of certain documents from the file of Darlene Richards, the real estate lawyer acting for the Respondent on the refinancing by the Respondent of the Applicant’s mortgage on the property known municipally as 121 Neville Park Avenue, Toronto (“the property”). The Respondent refused to produce the documents on the ground of solicitor-client privilege.

[2] Gilmore, J. made an Order dated August 13, 2019, which required Ms. Richards to give Mr. Wagman, matrimonial counsel for the Respondent, a copy of all of the emails in her real estate file sent or received by I.S., Ms. Richards, Mr. Rana, Scotiabank or Dominion Lending Centre. Mr. Wagman was to itemize the documents by date, sender and recipient, identify the documents over which privilege was claimed and explain why. The chart attached as Schedule “A” to the Applicant’s Notice of Motion dated February 7, 2020 (Schedule “A”) listed the remaining documents from Ms. Richards’ file which Mr. Wagman had not produced.

[3] On March 2, 2020, I made an Order (“the Order”) that the Respondent produce to the Applicant within two business days a complete and unredacted copy of all undisclosed documents in Darlene Richards’ file in connection with the Respondent’s refinancing of the Applicant’s mortgage on the property, identified in Schedule “A” to the Notice of Motion dated February 7, 2020. Mr. Wagman produced those documents.

[4] Mr. Zeitz then wrote to Ms. Richards seeking confirmation that the documents received by the Applicant were all of the documents in her file. Ms. Richards replied that because she did not prepare Schedule “A” and had not seen the productions, she could not say whether the listed items had been produced. She also took the position that the Order did not require her to confirm the complete file had been produced.

[5] The trial of this matter is scheduled to proceed in October, 2020. Mr. Zeitz says the Respondent produced an email dated September 28, 2017 in her Trial Exhibit Book that was not previously produced either on consent or pursuant to the Order. This is proof, he says that, despite two motions for production, the Respondent has not produced the entirety of Ms. Richards’ file.

[6] The Applicant seeks a revision to the Order to require the Respondent to instruct Ms. Richards to produce her entire unredacted file related to the refinancing to Applicant’s counsel. Mr. Zeitz states this is the only way to ensure that all of the documents in Ms. Richards’ file have been produced.

[7] Mr. Wagman obtained Ms. Richards’ file from her pursuant to the Order of Gilmore, J. He confirms that he has produced to Mr. Zeitz electronically all of the contents of the file in three tranches: the original non-privileged documents; the privileged documents produced prior to the February 26 motion; and the privileged documents produced pursuant to the Order. Mr. Wagman is prepared to produce all of these documents electronically to Mr. Zeitz again.

[8] Mr. Wagman states that the September 28, 2017 email was listed as document number 74 in Schedule “A”. It was produced to Mr. Zeitz. Privilege was not claimed over that document.

[9] Mr. Wagman is removing himself as the Respondent’s counsel of record for health reasons. At present, the Respondent’s entire file, including the copy of Ms. Richards’ file, is in the Respondent’s possession.

[10] Ms. Richards has confirmed to Mr. Wagman that her staff is not working at present. She cannot produce a further copy of the file to Mr. Zeitz.

[11] The Respondent’s evidence before me on the motion was that Schedule “A” contained all of the documents in Ms. Richards’ file received by Mr. Wagman, privileged and non-privileged. The intent of the Order was to ensure that the entirety of Ms. Richards’ file was produced to the Applicant.

[12] This is a high conflict case. There is a complete lack of trust between the parties. The Applicant seeks “a complete and unredacted copy of all undisclosed documents in Darlene Richards’ file”. The Respondent says there are no undisclosed documents. The Applicant will only be satisfied if he, and the company he controls which holds the mortgage on the property, has access to the complete file so that counsel can compare the contents with what has already been received.

[13] I am mindful of the current COVID-19 situation in the greater Toronto area, the rest of Canada and the world. In these circumstances, there are two ways the production can be confirmed and finalized. Ms. Richards has offered to make her entire file available for review and copy at her office by someone from Mr. Zeitz’s office so long as all recommended precautions of hygiene and social distancing are taken. Alternatively, I can order the Respondent to direct Ms. Richards to provide the Applicant’s counsel with a complete and unredacted copy of her entire file by a date certain.

[14] The difficulty with the second option is that I do not know when Ms. Richards will be in a position to provide a copy of the file. Mr. Zeitz suggests April 24, just over three weeks from now, with the intervening Passover and Easter holidays. In all of the circumstances, I do not think this time frame is realistic.

Order

[15] Paragraph 28 of the Reasons on Motion dated March 2, 2020 is hereby amended as follows: Within 10 days of the date of this Endorsement, the Respondent shall write to Darlene Richards instructing and/or directing her to provide the Applicant’s counsel with a complete and unredacted copy of her entire file in connection with the Respondent’s attempt to refinance the Applicant’s mortgage on the property known municipally as 121 Neville Park Avenue, Toronto, including, but not limited to, the documents identified in the chart attached as Schedule “A” to the Applicant’s Notice of Motion dated February 7, 2020 as document numbers 32, 40, 43, 54-62, 64, 67, 69, 70, 76, 77, 86, 89-92 and 97. The Respondent shall copy the Applicant’s counsel with her communication to Ms. Richards. Ms. Richards shall produce the file no later than Friday May 8, 2020.

[16] If, due to circumstances arising from the COVID-19 situation, Ms. Richards is unable to produce the file by that date, I encourage counsel to work cooperatively to determine an appropriate extension. If counsel cannot agree, they may schedule a conference call with me through the Family Scheduling Office.

E.L. Nakonechny, J. Released: March 30, 2020