RELEASED: 2020/09/23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Andreas Veneris v. Carol Jane Parker, Dr. Rex Collins, Dr. Mirella Pugliese, and Collins Psychology Professional Corporation operating as The Willow Centre
BEFORE: Master Graham HEARD: July 28, 2020
APPEARANCES: Justin Linden for the plaintiff
Anna Iourina for the defendants (moving parties)
REASONS FOR DECISION
(Motion for production of file from plaintiff’s matrimonial lawyer)
1The plaintiff Andreas Veneris has been involved in a lengthy matrimonial proceeding with his estranged wife (“Mia”) since their separation on March 23, 2014. The couple has one child, born September 19, 2013, the custody of whom was a major issue. During the matrimonial litigation, the parties consulted the defendant psychotherapists, primarily the defendant Parker, to provide therapeutic services and make recommendations to the court with respect to their dispute.
2Veneris alleges that the defendants committed various acts of misconduct that compromised his position in the matrimonial litigation and required him to incur significant additional legal costs. The defendants now move to compel Veneris to produce his matrimonial lawyer’s file on the basis that it is relevant to this allegation.
3Defendants’ counsel raised a preliminary objection to the plaintiff’s evidence in paragraphs 13, 14 and 15 of his affidavit relating to disciplinary proceedings against the defendants Parker and Collins before The College of Registered Psychotherapists of Ontario and The College of Psychologists of Ontario respectively. Counsel submitted that the proceedings before those Colleges were not admissible in civil proceedings. This objection was resolved by plaintiff’s counsel agreeing not to rely on the proceedings before those two regulatory bodies for the purposes of this motion.
4The paragraphs in the statement of claim containing the allegations relating to the plaintiff’s increased legal fees are:
“20. Parker failed to recommend that Mia receive urgent and immediate therapy, contrary to the recommendations contained in her computerized test results. Andreas [the plaintiff] made repeated requests of Parker to refer the parties to a therapist who specializes in borderline personality disorder and parental alienation. Parker failed to do so. Her actions prevented the family from engaging in a proper course of treatment that would have helped both parties create a stable family support system around [their child]. Instead, Parker misguided the legal process, generating conflict and significant costs to both parties to the detriment of the family, and, particularly, [their child].
Parker was required to deliver a parenting plan by October, 2015 to permit “parenting questioning” to take place in October, 2015. However, Parker did not deliver a parenting plan until February 17, 2016 – three weeks before the March 7, 2016 trial. This delay resulted in the cancellation of “parenting questioning” on two occasions and caused the Plaintiff, Andreas, to incur extra legal costs. . . .
On January 21, 2016, Mia brought an unsuccessful motion to adjourn the trial scheduled for March 7, 2016 on the grounds that Parker’s parenting plan had not arrived. The motion caused the Plaintiff to incur significant legal costs. . . .
Parker’s targeted actions, and her collusion with Mia’s lawyer, significantly compromised Andreas’ legal position, caused significant distress to Andreas during the negotiation process, frustrated his ability to prepare for trial, and significantly prolonged the litigation. These circumstances pressured Andreas into agreeing to arbitrate their dispute and to making other prejudicial concessions to Mia. The parties settled the litigation on March 9, 2016 and entered into an arbitration agreement on March 10, 2016. . . .
Parker also testified [at the arbitration] that Mia was not a flight risk, despite the fact that prior court proceedings and an expert witness deemed her a flight risk and despite the fact that Mia’s psychological profile suggested that she was a flight risk. Parker lacked the credentials, knowledge, impartiality, and expertise to speak to that issue. Her conduct was grossly negligent, reckless, and placed the child . . . at risk. Parker’s evidence on matters beyond her expertise – such as the Korean Registry Tree [which would allow Mia to obtain a Korean passport for their child] and whether Mia was a flight risk – caused Andreas to incur extra legal costs.
On February 22, 2017, the Arbitrator released an arbitral award that reflected Parker’s negligent, false, misleading, and biased arbitration testimony. Parker’s improper evidence and conduct at arbitration gave rise to an appealable arbitral award. This has caused Plaintiff, Andreas, to incur extra costs and emotional stress to pursue an appeal of the Arbitrator’s decision.
The Plaintiff, Andreas, has incurred legal fees of approximately $900,000.00 throughout this litigation. A substantial proportion of that amount is directly attributable to Parker’s conduct. Parker injected delay and confusion into the litigation, necessitating unnecessary motions, extra legal steps, correspondence with counsel, cancellations of parenting questioning, the retention of experts, cross-examinations, and other extra steps and procedures. Parker colluded with Mia’s lawyer and deliberately fueled and prolonged the litigation between the parties, despite her mandate to diffuse conflict. . . .
As a result of the Defendants’ conduct, the Plaintiff has incurred a significant financial loss and has suffered extreme and profound physical, emotional and psychological harm. . . . [The particulars of the misconduct of the defendant Parker include that]: (jj) She deliberately perpetuated adversarial litigation between the parties; . . .
The Plaintiff, Andreas, pleads that as a result of the Defendants’ conduct he has sustained significant costs of litigation and arbitration and will incur further expenses to seek redress. Andreas would not have sustained these losses but for the Defendants’ misconduct.” [emphasis added throughout]
5These claims and the alleged ensuing damages are all denied in the statement of defence.
6To summarize the defendants’ submission, the plaintiff has pleaded that the defendants’ alleged misconduct resulted in a significant increase in his legal costs in the matrimonial litigation. The evidence of the plaintiff’s matrimonial lawyer, and by extension the contents of that lawyer’s file, are therefore relevant to the issues of what additional work the lawyer was required to do, and what additional fees the plaintiff was charged, as a result of the defendants’ actions.
7The plaintiff opposes the motion on the basis that, although relevant to issues raised in the statement of claim, his matrimonial lawyer’s file is protected by solicitor-client privilege. Nonetheless, the plaintiff is prepared to produce much of the file, as stated in paragraph 8 of his responding affidavit (and reiterated in his counsel’s submissions):
“8. I agreed to the Defendants’ request to produce all parts of the family law file except for the internal notes of the lawyer and any solicitor-client communications. As my family law matter is not finally resolved, disclosure of solicitor-client or litigation privileged documents would compromise my position considerably.” [emphasis added]
8I accept that the plaintiff’s matrimonial lawyer’s file is both relevant to the issues in the action and subject to solicitor-client privilege. The issue on this motion is whether the plaintiff may maintain that privilege over those portions of his lawyer’s file that he is refusing to produce or whether he is deemed to have waived the privilege by putting his lawyer’s advice to him in issue.
Defendants’ submissions
9The defendants rely on Martin v. GiesbrechtGriffin, 2018 ONSC 7794 (SCJ). The plaintiff in Martin had a domestic contract that was set aside in his matrimonial action, and his ex-spouse was awarded an equalization payment in relation to a farm property that the contract was intended to protect. The plaintiff then sued the law firm that prepared the domestic contract, claiming that their negligence in preparing the contract resulted in various losses, including the costs of his family law litigation. The defendant “domestic contract lawyers” moved for production of the file of the “divorce lawyer” that represented him in the divorce proceedings.
10In Martin, Braid J. stated the applicable legal principles (paras. 11-14):
11The issue I must determine on this motion is whether the plaintiff has waived solicitor-client privilege. Solicitor-client privilege is a fundamental right. It serves to promote open and honest communication in obtaining legal advice without fear of intrusion by other parties. However, privilege is not absolute: see Solosky v. R., 1979 CanLII 9 (SCC), [1979] S.C.J. No. 130 (S.C.C.). A client can expressly or impliedly waive solicitor-client privilege. It is the client's privilege to waive.
12The principles of fairness and consistency temper and guide when waiver of privilege is deemed to occur. Whether fairness and consistency require implied waiver of privilege is case specific and factually dependent. The court provides an important gatekeeping function to avoid inappropriate requests for disclosure, balancing fairness with the importance of the solicitor-client privilege.
13Deemed waiver and disclosure will be limited to circumstances where the relevance of the evidence in question is high and the principles of fairness and consistency require disclosure to allow a party to adequately defend: see Roynat Capital Inc. v. Repeatseat Ltd., 2015 ONSC 1108 (Ont. Div. Ct.).
14When determining whether privilege should be deemed to have been waived, the court must balance the interests of full disclosure for purposes of a fair trial against the preservation of solicitor-client privilege. Fairness to a party facing a trial has become a guiding principle in Canadian law. Privilege will be deemed to have been waived when the interests of fairness and consistency; or when a communication between solicitor and client is legitimately brought into issue in an action. When a party places its state of mind at issue and has received legal advice to help form that state of mind, privilege will be waived with respect to such legal advice: see Norhal Quarries & Holdings Ltd. v. Ross & McBride, [2000] O.J. No. 1082 (Ont. S.C.J.). [emphasis added throughout]
11In ordering production of the plaintiff’s divorce lawyer’s file, Braid J. concluded that the plaintiff waived solicitor-client privilege in that file by pleading that the domestic contract lawyers were the cause of his losses. Some of the claims being advanced put the plaintiff’s litigation strategy in his divorce action in issue thus making relevant his divorce lawyer’s advice to him. The divorce lawyer’s file was also relevant to the issues of mitigation and of the reason for costs awards against the plaintiff both at trial and on appeal.
12The defendants submit that similar to the plaintiff in Martin, the plaintiff Veneris, by pleading that the defendants were responsible for a significant increase in his family lawyer’s fees, put both his state of mind and his litigation strategy in issue, thus creating an implied waiver of privilege over that lawyer’s entire file.
Plaintiff’s submissions
13Veneris submits that the case law relied upon by the defendants only applies where a plaintiff puts their lawyer’s advice in issue in the action. He relies on Woodglen & Co. Ltd. v. Owens, 1995 CanLII 7070 (ON SC), [1995] O.J. No. 1941 in which E. Macdonald J., while recognizing that solicitor-client communications are permanently protected from disclosure, acknowledged that the protection could be waived where “a party puts the presence or absence of legal advice in issue.” This is consistent with the statement of the law in paras. 11-14 of Martin, supra.
14The court in Woodglen considered and rejected the proposition in some earlier authorities that solicitor-client privilege would not apply to communications going to “the heart of the matter” in issue in the litigation. However, this analysis does not assist in resolving the issue before me because counsel for the defendants did not argue that a communication going to “the heart of the matter” was sufficient to defeat the privilege.
15Veneris also relies on Soprema Inc. v. Wolrige Mahon LLP, 2016 BCCA 471, in which the court states the following two principles with respect to the waiver of solicitor-client privilege (at paragraphs 49 and 50):
Communications protected by privilege should be disclosed only where absolutely necessary, applying as restrictive a test as may be formulated short of an absolute prohibition in every case (Goodis v. Ontario (Ministry of Correctional Services, 2006 SCC 31);
The weight of authority supports the proposition that a party must voluntarily inject into the litigation legal advice it received or its understanding of the law before waiver can be implied.
16This statement of the law relied upon by Veneris is essentially the same as that in Martin, supra on which the defendants rely. The court in Soprema Inc. states that privileged communications should be disclosed only where absolutely necessary, which imposes a burden similar to that in para. 13 of Martin, that “deemed waiver and disclosure will be limited to circumstances where the relevance of the evidence in question is high”. The statement in Soprema Inc. that a party must voluntarily inject into the litigation advice it received before waiver can be implied is equivalent to the passage in para. 14 of Martin that “privilege will be deemed to have been waived . . . when a communication between solicitor and client is legitimately brought into issue in an action.”
17In any event, relying on Soprema Inc., Veneris submits that, although he may have obtained legal advice during his matrimonial litigation, he has not put that advice in issue, and he should not lose the benefit of the privilege that attaches to that advice. Any litigation advantage that he would gain from not having to disclose his solicitor-client communications would not be unfair where the advantage derives from the upholding of a principle as important as solicitor-client privilege.
18Although Veneris includes “Litigation Privilege” as a heading immediately above paragraph 19 of his factum, all of the plaintiff’s written legal argument relates to the issue of solicitor-client privilege. Veneris deposes in his affidavit (para. 5) that the custody and access issues in his matrimonial action are resolved but support obligations are not yet finalized. He submits in his factum (para. 12) that, as the matrimonial case is not concluded because the issue of support is not finally determined, the litigation privilege over his lawyer’s documents continues.
19Veneris also deposes in his affidavit (para. 9) that “any [of his matrimonial lawyer’s] notes and correspondence dealing with Ms. Parker and Dr. Collins were prepared in contemplation of litigation”. Plaintiff’s counsel submitted at the hearing that any such documents created for the purpose of prosecuting this action against the defendant psychologists are thereby protected by litigation privilege.
Analysis and conclusion
20The plaintiff submits that production of his family lawyer’s entire file is precluded by solicitor-client privilege. Although I unreservedly accept the importance of that privilege, it is not absolute and may be deemed to be waived “where the relevance of the evidence in question is high and the principles of fairness and consistency require disclosure to allow a party to adequately defend” (para. 13 of Martin, supra).
21A large part of Veneris’ claim is based on his allegation that the defendants’ conduct resulted in him incurring significantly increased legal fees, best summarized in paragraph 34 of the statement of claim, which I repeat for ease of reference:
“34. The Plaintiff, Andreas, has incurred legal fees of approximately $900,000.00 throughout this litigation. A substantial proportion of that amount is directly attributable to Parker’s conduct. Parker injected delay and confusion into the litigation, necessitating unnecessary motions, extra legal steps, correspondence with counsel, cancellations of parenting questioning, the retention of experts, cross-examinations, and other extra steps and procedures. Parker colluded with Mia’s lawyer and deliberately fueled and prolonged the litigation between the parties, despite her mandate to diffuse conflict.”
22Based on para. 14 of Martin, supra, “privilege will be deemed to have been waived . . . when a communication between solicitor and client is legitimately brought into issue in an action” or “when a party places its state of mind at issue and has received legal advice to help form that state of mind . . .”. The plaintiff submits that there can be no implied waiver of his privilege because he has not put the legal advice from his matrimonial lawyer in issue. However, the plaintiff’s allegations that the defendants were responsible for an increase in the fees paid to his matrimonial lawyer do bring into issue his communications with that lawyer because they require an examination of why he took various steps in his matrimonial case, and whether those steps were a reasonable or necessary response to the defendants’ actions.
23Veneris submits that the defendants have not provided any evidence that correspondence or other communications between him and his lawyer are relevant. Of course, it would be impossible for the defendants to submit any concrete evidence in that regard because it would be contained in the very file of which they seek production on this motion.
24It would be completely incongruous for the plaintiff on one hand to plead (as he has) that, owing to the conduct of the defendant Parker, he paid his matrimonial lawyer “a substantial proportion” of approximately $900,000.00 in legal fees, but on the other to suggest that he never relied on or at least considered that lawyer’s advice when giving instructions to do the work for which those fees were charged. The court can therefore reasonably infer that the plaintiff’s matrimonial lawyer gave him advice as to what steps to take, thus informing his state of mind when he was instructing the lawyer how to proceed in response to the defendants’ actions. Even though Veneris has not pleaded reliance on legal advice, the fact that based on his pleading he must have both received and relied on legal advice in responding to the impugned conduct of the defendants, implicitly puts that legal advice in issue in this action.
25Veneris has put in issue the reason that various steps were taken in his matrimonial litigation, specifically, whether they were taken as a response to the conduct of Parker and the other defendants, or whether those steps would have been required regardless of the defendants’ actions. Addressing this issue requires an exploration of why Veneris took the steps that he did, which inevitably opens the door to the advice that he got from his lawyer regarding the decisions made in the action. I therefore disagree with the submission of the plaintiff, as contained in his factum, that “this is not an action that turns on the advice of a solicitor to follow a course of action”. In order to pursue this essential line of enquiry, the defendants will need access to the portions of the plaintiff’s family lawyer’s file that he is refusing to produce, i.e. “the internal notes of the lawyer and any solicitor-client communication”.
26Also, Veneris claims damages for his increased legal expenses as a result of the conduct of the defendants. It will be impossible for the trial court to assess the damages arising from the additional steps that he was required to take as a result of the defendants’ alleged misconduct without examining the legal advice he received from his matrimonial lawyer with respect to those steps. Further, to substantiate his damages, the plaintiff must rely on that lawyer’s evidence with respect to the fees charged for those additional steps. Trial fairness dictates that the defendants have access to the lawyer’s file so that they can test this evidence.
27Veneris also attempts to distinguish his case from Martin, where the plaintiff claimed damages based on a former lawyer’s allegedly bad legal advice, on the basis that he is claiming damages arising from the misconduct of a psychologist and not from the legal advice received to address the consequences of that misconduct. However, the fact that his action is not for damages arising from negligent legal advice does not make the legal advice obtained in relation to the psychologists’ alleged misconduct any less relevant.
28The plaintiff’s pleading makes his communications with his lawyer highly relevant to his claim and therefore sufficient to constitute a deemed waiver of privilege. Although the issue of support remains a live issue in the divorce action, the plaintiff would not be prejudiced by the disclosure of the file in this action because the Deemed Undertaking rule (rule 30.1.01(3)) prevents the use of any portion of that file other than for the purpose of defending this action.
29With respect to the litigation privilege asserted over the matrimonial lawyer’s file on the basis that the lawyer’s documents were prepared for the ongoing matrimonial action, the plaintiff’s evidence in his responding affidavit is that the issues of custody and access have been resolved. Litigation privilege with respect to the “custody and access” portion of the file would therefore have lapsed. Further, as concluded above, any material in the matrimonial lawyer’s file with respect to the ongoing support issue is protected by the Deemed Undertaking rule.
30With respect to the issue of litigation privilege in relation to documents prepared for this action, which was only raised in passing in both the plaintiff’s factum and at the hearing, the plaintiff has provided no details of the specific documents for which litigation privilege is claimed. As indicated above, Veneris deposes that any of his lawyer’s notes and correspondence dealing with the defendants Parker and Collins were prepared in contemplation of litigation. To the extent that any such documents were prepared for the dominant purpose of this action, they would be subject to litigation privilege; the plaintiff should not be required to produce documents relating to his litigation strategy against the defendants sued in this action. Accordingly, Veneris shall serve an affidavit of documents listing in Schedule B the specific documents referred to in the second sentence of paragraph 9 of his responding affidavit. The claim of privilege over these documents may be the subject of examination for discovery when Veneris is examined.
31For these reasons, Veneris shall produce his matrimonial lawyer’s entire file except for the documents described in the previous paragraph that have been ordered to be listed in Schedule B of an affidavit of documents.
Costs
32At the conclusion of the hearing, both counsel agreed that the successful party on the motion should be awarded costs fixed at $2,228.57. The defendants having largely succeeded on the motion, except for the exclusion of the documents described in paragraph [30], the plaintiff shall pay the costs of the motion fixed at $1,750.00 payable within 60 days.
MASTER GRAHAM
September 23, 2020