COURT FILE NO.: FS-15-20247 DATE: 20210104

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wendy Laliberté, Applicant AND: Scott Monteith, Respondent

BEFORE: Nishikawa J.

COUNSEL: George Karahotzitis and Camelia Amiri, for the Applicant Dani Frodis, for the Respondent

HEARD: October 1 and 15, 2020 (By videoconference)

Endorsement

Overview and Procedural Background

[1] The Applicant brings a motion for disclosure of the Respondent’s solicitor’s file. The Applicant also seeks responses to questions that were refused at the Respondent’s questioning. The Respondent brings a cross-motion for disclosure of the Applicant’s solicitor’s file.

[2] The Applicant, Wendy Laliberté, and the Respondent, Scott Monteith, were married in June 1994 and separated in February 2012. They were divorced in June 2014. They have two children, who are now 22 and 19 years old.

[3] After the parties’ separation, Ms. Laliberté brought an application in this court in April 2013 (FS-13-385916). The parties engaged in settlement discussions and mediation. Both were represented by counsel throughout. On January 30, 2014, they entered into Minutes of Settlement (the “Minutes”) which were incorporated into a Separation Agreement dated April 8, 2014 (the “Agreement”).

[4] In this Application, dated June 26, 2015 (the “Application”), Ms. Laliberté seeks to set aside the Agreement on the basis that Mr. Monteith materially misrepresented his financial circumstances when the parties were negotiating the Minutes and Agreement. In February 2015, Ms. Laliberté discovered that when the Agreement was concluded, Mr. Monteith had been negotiating the sale of two of his business interests, Green Turtle Americas Ltd. and Filamat Composites Inc. (collectively referred to as “Green Turtle”). The sale of Green Turtle closed on April 14, 2014, for a combined price of over $30 million.

[5] In his Answer, dated October 8, 2015 (the “Answer”), [1] Mr. Monteith stated that he received, directly or indirectly, approximately $23.7 million from the Green Turtle sale before contingent income taxes. After tax, the amount was approximately $18 million. During the settlement negotiations, Mr. Monteith represented that his business interests at the valuation date were between $7-8 million and that his income, for the purposes of the Child Support Guidelines, O. Reg. 391/97, was between $435,000 to $840,000.

[6] This proceeding has a lengthy history, which will not be detailed here. After Chiappetta J. was appointed case management judge in January 2016, twelve case conferences were held.

[7] In December 2017, Hood J. heard the Applicant’s motion relating to disclosure and the Respondent’s motion to bifurcate the proceeding. In his Endorsement dated January 25, 2018, Hood J. bifurcated the proceeding and ordered that the validity of the Agreement be determined first. Hood J. also ordered that the Respondent disclose a broad range of documents, including financial disclosure relating to the Green Turtle transaction and the Respondent’s financial circumstances as of the date of separation and the date the Agreement was signed.

[8] Questioning of the Respondent took place on August 10, 2018. The questioning was terminated by the Respondent’s counsel. Affidavits of documents were then exchanged in November 2018. The questioning of the Respondent was continued on January 23, 2020. The Applicant has not been questioned.

[9] The trial on the issue of the validity of the Agreement is scheduled for eight to ten days beginning on March 1, 2021.

[10] On this motion, Ms. Laliberté seeks production of the file of the lawyer who represented Mr. Monteith during the settlement negotiations in relation to the first proceeding (FS-13-385916), Harold Niman.

[11] On the cross-motion, Mr. Monteith seeks production of the file of the lawyer who represented Ms. Laliberté during the settlement negotiations in relation to the first proceeding, Stephen Grant.

[12] The Applicant also moved for answers to undertakings and refusals given at the questioning. Because insufficient time had been booked for the motion hearing on October 1, 2020, the portion of the Applicant’s motion seeking responses to refusals and undertakings was adjourned to October 15, 2020. On that date, counsel advised the court that the parties had resolved the portion of the motion relating to specific refusals and undertakings, except the questions that were refused on the basis of settlement privilege.

Issues

[13] The issues on this motion are as follows:

(i) Did the Respondent waive privilege over solicitor-client advice received from his lawyer during the course of the parties’ settlement negotiations?

(ii) Did the Applicant waive privilege over solicitor-client advice received from her lawyer during the course of the parties’ settlement negotiations?

(iii) Are the parties’ settlement discussions protected by settlement privilege? If not, should the Respondent be compelled to answer questions that were refused during his questioning relating to representations made by his representatives during the parties’ settlement negotiations?

Analysis

The Parties’ Positions

[14] In the Application, Ms. Laliberté seeks to set aside the Agreement on the basis that Mr. Monteith failed to disclose the Green Turtle sale and its potential impact on the value of his business interests. Ms. Laliberté’s position on the motion is that Mr. Monteith ought to be compelled to produce his lawyer’s file because he has admitted that he intentionally did not disclose the sale and thus waived solicitor-client privilege. Ms. Laliberté further submits that the settlement negotiations between the parties are not protected by settlement privilege.

[15] Mr. Monteith’s position on the Application is that the Agreement is valid and binding. On the motion, Mr. Monteith submits that he has not waived solicitor-client privilege over the advice he received from his lawyer during the settlement negotiations because he has not made an affirmative allegation placing his state of mind in issue. Mr. Monteith further submits that settlement privilege applies to the matter discussed during the parties’ settlement negotiations.

The Applicable Legal Principles

Setting Aside an Agreement

[16] The statutory context for Ms. Laliberté’s application to set aside the Agreement is s. 56(4)(a) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), which states:

Setting aside domestic contract

56(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party fails to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made…

[17] It is a well-established principle that parties in family law cases have a positive obligation to make complete, fair and frank financial disclosure before a contract is entered into, whether or not a party requests it: Patrick v. Patrick, 2002 CarswellOnt 593 (Sup. Ct.), at para. 53; LeVan v. LeVan, 2006 ONSC 31020, 82 O.R. (3d) 1 (Sup. Ct.) at para. 181, aff’d 2008 ONCA 388, 90 O.R. (3d) 1. In order to protect the integrity of the result of negotiations undertaken in the “uniquely vulnerable circumstances of a marriage breakdown,” each spouse owes a duty of utmost good faith to the other: Giffin v. Giffin, 2018 ONSC 4104, at para. 52.

[18] The Applicant also seeks, among other relief, an accounting and damages for the common law torts of deceit, negligent or fraudulent misrepresentation, and breach of fiduciary duty.

Waiver of Solicitor-Client Privilege

[19] Solicitor-client privilege is a fundamental principle of our legal system: Guelph (City) v. Super Blue Box Recycling Corp., 2004 ONSC 34954 (Ont. Sup. Ct.), at para. 76. The privilege is, however, subject to certain clearly defined exceptions.

[20] In determining whether privilege should be deemed to have been waived, the court must balance the interests of full disclosure for the purposes of a fair trial against the preservation of solicitor-client privilege: Bank Leu AG v. Gaming Lottery Corp., [1999] O.J. No. 3949 (Sup. Ct.), at para. 5. The onus lies on the party seeking to overcome the privilege to establish that the communication ought to be compelled from the party asserting the privilege: Super Blue Box, at para. 76.

[21] A waiver of privilege may be express or implied. Implicit waiver may arise in two circumstances: (i) waiver by disclosure – once the privileged communication has been disclosed, the privilege attached to it is said to be lost; or (ii) waiver by reliance – by pleading or otherwise relying upon the privileged communication as part of a substantive position taken in the legal proceedings: Super Blue Box, at paras. 79-80; Leitch v. Novac, 2017 ONSC 6888, at para. 60.

[22] A deemed waiver, and an obligation to disclose a privileged communication, requires two elements: (i) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence, in other words, the presence or absence of legal advice is material to the lawsuit; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence: Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para. 30.

[23] A party will have waived solicitor-client privilege where they have placed their state of mind at issue and given evidence that they received legal advice which, in part, formed the basis of that state of mind. An implicit waiver can also arise by reason of the positions taken by a party which implicitly require the disclosure of communications between solicitor and client: Spicer v. Spicer, 2015 ONSC 4175, at paras. 13, 15.

Has the Respondent Waived Solicitor-Client Privilege?

[24] In this case, Ms. Laliberté submits that Mr. Monteith waived privilege over Mr. Niman’s file by reliance, that is, by pleading or otherwise relying upon the privileged communication as part of a substantive position taken in this proceeding.

[25] Mr. Monteith, relying on Scott & Associates Engineering Ltd. v. Ghost Pine Windfarm, LP, 2011 ABQB 339, at paras. 61-62, submits that there has been no waiver of privilege and that it is Ms. Laliberté who has put his state of mind, and therefore his legal advice, at issue.

[26] Based on Creative Career Systems, at para. 30, the first element to consider is whether the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence, in that it is material to the lawsuit.

[27] In the Application, in addition to a failure to disclose under s. 56(4) of the FLA, Ms. Laliberté pleads the torts of deceit and negligent or fraudulent misrepresentation.

[28] The Applicant specifically pleads that “the financial disclosure provided by the Respondent was inaccurate, misleading and false and was provided with the intention that the Applicant would act upon his representations concerning his financial circumstances.” In addition, at para. 28 of the Application, the Applicant pleads that the Respondent “knowingly, recklessly, without belief in the truth of his representations concerning his financial circumstances, deliberately misled the Applicant” or that he was negligent in making the representations.

[29] The Applicant further pleads that the Respondent “had a positive obligation to disclose the pending sale in advance of the execution of the Minutes of Settlement and/or the Separation Agreement and failed to do so.”

[30] The elements of the tort of deceit or fraudulent misrepresentation include knowledge that a representation of fact is false, or recklessness as to its truth and an intent to deceive. While the Applicant’s allegations of intentional torts raise the issue of the Respondent’s state of mind, I agree with the Respondent that the Applicant’s pleading alone cannot put his state of mind at issue. For example, a defendant could defend against a claim of deceit without putting state of mind at issue, by denying that the representation of fact was false or by denying that the plaintiff relied on the representation.

[31] The Answer is carefully drafted to avoid putting the Respondent’s state of mind, and any legal advice that might have had an impact on his state of mind, at issue. For the most part, the Respondent does not deny specific allegations contained in the Application. For example, the Answer does not respond to the Applicant’s allegation that he had a positive obligation to disclose the pending Green Turtle sale. Nor does the Respondent specifically plead that he knew or did not know that he had an obligation to disclose the sale. Any of those statements would put in issue the legal advice received from counsel. In the Answer, the Respondent pleads only that “[a]t all times, the parties had independent legal advice.”

[32] However, in the Answer, the Respondent denies the allegations contained in paras. 26-30 of the Application, which includes the allegation that he knowingly, recklessly and/or deliberately misled the Applicant or, alternatively, that he was negligent in making the representations. The Respondent’s pleading goes beyond denying that the representations were false or that there was no reliance by the Applicant. The Respondent’s state of mind is thus material to his defence.

[33] In my view, because the Respondent denies that he knowingly, recklessly or deliberately misled the Applicant, he has put his state of mind at issue. While he avoids specifically stating that he had no obligation to disclose the Green Turtle transaction or that he relied on legal advice in not disclosing the transaction, the statement regarding legal advice implies that he was aware of his legal obligations. The Respondent’s reliance on legal advice is implicit in the Answer and integral to his defence. In effect, the Respondent’s defence is that he had no obligation to disclose the transaction, which turns on the legal advice he received at the time. Alternatively, his defence is that he did not knowingly, deliberately or recklessly fail to disclose because, despite having legal advice “at all times,” he did not know that he had an obligation to disclose the transaction. Either way, the legal advice is central to his defence.

[34] The legal advice received by the Respondent is thus relevant to the question of whether he intentionally or deliberately misled the Applicant, or was reckless or negligent in doing so. If the Respondent had received legal advice that he was required to disclose the imminent sale of Green Turtle, this would support the allegation that he intentionally failed to disclose or was reckless or negligent in disregarding the legal advice. If the Respondent had received legal advice that he was not required to disclose the Green Turtle transaction, this could support the Respondent’s defence that he did not have the requisite intent to deceive or that he was not negligent in failing to disclose.

[35] In the event that the parties’ pleadings are not sufficient to find that Mr. Monteith waived solicitor-client privilege, the Respondent’s responses on questioning further support such a finding. Under questioning, Mr. Monteith stated as follows:

• He did not contemplate postponing the January 2014 mediation after signing a letter of intent to sell Green Turtle;
• He had his Chief Financial Officer, Michael Brandt, prepare a valuation analysis that stated that his business interests were valued at approximately $7.9 million, as shown in his financial statement dated January 10, 2013;
• Mr. Brandt’s valuation was conveyed to the Applicant and her counsel at the mediation in January 2014;
• By the time the parties attended mediation in January 2014, there had been a change to the value of his business interests but no updated financial statement was produced;
• At the time, the Respondent was involved in negotiations to sell Green Turtle and had sold another company for $18 million;
• He did not disclose the Green Turtle transaction at any time prior to the signing of the Agreement, even though it was being negotiated at the same time;
• The sale of Green Turtle for $30 million constituted a significant change in his financial circumstances; and
• The non-disclosure of the Green Turtle transaction was intentional.

[36] At his questioning, Mr. Monteith admitted that he understood that he had an obligation to provide financial disclosure to the Applicant until the Agreement was signed and that he had an obligation to disclose a material change in his financial circumstances. He further admitted that at all material times, he relied on the advice of his legal counsel, Mr. Niman. The legal advice received by the Respondent is thus relevant to the decision not to disclose the Green Turtle sale.

[37] In his affidavit on this motion, Mr. Monteith states that he did not deliberately conceal the Green Turtle sale. This statement demonstrates that even if the Answer did not expressly put the Respondent’s state of mind, and the legal advice on which he relied, at issue, both are necessarily material to his defence in the litigation. The Respondent has also pointed out on this motion and in his Answer that the Green Turtle was confidential and not binding when the Agreement was executed, and that both parties could have walked away until that time. The necessary implication is that the Respondent understood that he had no obligation to disclose a non-binding transaction.

[38] In Bank Leu, at para. 5, Ground J. held that where a party places its state of mind in issue and has received legal advice to help form that state of mind, privilege will be deemed to be waived with respect to the legal advice.

[39] Based on the foregoing analysis, I find that Mr. Monteith has waived solicitor-client privilege because the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence. Moreover, he has made the receipt of legal advice an issue in his defence by putting his state of mind during the settlement negotiations at issue.

[40] Mr. Monteith takes the further position that his state of mind is irrelevant to the Applicant’s claims because the Applicant need only demonstrate a failure to disclose to set aside the Agreement pursuant to s. 56(4) of the FLA. This submission disregards the fact that the parties’ pleadings, which allege and defend against intentional torts, have put the Respondent’s state of mind squarely in issue. Moreover, in Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at paras. 48-49, the Supreme Court of Canada held that the extent of a party’s failure to disclose and the degree to which it is found to have been deliberately generated are relevant facts in determining whether a court will intervene in setting aside a domestic contract: see also Virc v. Blair, 2014 ONCA 392, 119 O.R. (3d) 721 at paras. 65-66. In Giffin, the court set aside a separation agreement where the husband deliberately failed to disclose the existence of letters of intent and the sale of shares.

[41] Similarly, the Respondent’s reliance on Montemarano v. Montemarano, 2020 ONSC 1393, is misplaced. In that case, Akbarali J. found no basis upon which to find that the respondent husband had put his state of mind at issue. In that case, the respondent husband pleaded that he had no knowledge of the undisclosed assets when negotiating the settlement agreement.

[42] In the circumstances of this case, adopting the approach in Bank Leu, the interests of fairness and consistency dictate that the privilege be deemed to have been waived. Mr. Monteith was represented by counsel throughout the parties’ settlement negotiations. He intentionally did not disclose the Green Turtle sale. While the Respondent has avoided saying that the basis for his decision not to disclose was legal advice, the implication is unavoidable. Fairness dictates that the Respondent be required to produce his lawyer’s file.

[43] Based on my findings above, I need not rely on the case law finding that where parties to a separation agreement both obtain certificates of independent legal advice, solicitor-client privilege is waived: Griffore v. Adsett (2001), 2001 ONSC 28207, 18 R.F.L. (5th) 63 (Ont. Sup. Ct.); Balsmeier v. Balsmeier, 2014 ONSC 5305, 50 R.F.L. (7th) 390. The Respondent submits that Griffore and Balsmeier were either wrongly decided or turn on their facts and do not rely on the principle in support of the cross-motion. In any event, I am more inclined to follow the general test for waiver of privilege rather than to rely solely on a certificate of independent legal advice as establishing the waiver.

[44] The Respondent shall be required to disclose the file of his former counsel, Harold Niman, who represented him during the settlement negotiations in Court File No. FS-13-385916.

Has the Applicant Waived Solicitor-Client Privilege?

[45] Mr. Monteith brought a cross-motion for production of the file of Ms. Laliberté’s legal counsel during the settlement negotiations, Stephen Grant. The Respondent submits that the Applicant has waived privilege over the file because she pleads that she was induced into entering the Agreement by the Respondent’s misrepresentations and threats that he would go bankrupt.

[46] Ms. Laliberté disputes that she has waived solicitor-client privilege.

[47] In the Application, the Applicant alleges that the Respondent knowingly, deliberately or recklessly misled her about his financial circumstances, including by failing to disclose the Green Turtle sale. The Applicant alleges that she was induced into entering into the Agreement in reliance on the Respondent’s representations.

[48] While the Respondent submits that the Applicant has put her state of mind at issue by alleging that she would not have entered the Agreement had she known about the Green Turtle sale, this alone is not sufficient to constitute a waiver of solicitor-client privilege. A party’s state of mind would always be in issue where they allege that they were induced into entering into an agreement by another party’s misrepresentation. All that the Applicant is alleging is that she believed the Respondent’s representations.

[49] Unlike the Respondent’s defence, the presence or absence of legal advice is not relevant to the existence or non-existence of the Applicant’s claims. Similarly, the Applicant has not made the receipt of legal advice an issue in her claims. The Applicant does not seek to set aside the Agreement on the basis of inadequate legal advice. The Applicant alleges that she relied on the Respondent’s representation that he would go bankrupt. She does not plead that her counsel made any statement in this regard or that her legal advice played a role in her reliance on the Respondent’s representations.

[50] Moreover, the Applicant’s allegation that she would not have entered into the Agreement had she known about the Green Turtle sale is not a waiver of privilege over any legal advice received in relation to the sale. The Applicant could not have received legal advice relating to the Green Turtle sale during the settlement negotiations when she did not know about it.

[51] The Application does not give rise to a waiver of solicitor-client privilege because the Applicant has not pleaded anything to suggest that the receipt of legal advice is material to any of her claims. Because the Respondent did not question the Applicant, at this stage, there is no further basis to suggest that she has put her state of mind at issue.

[52] The cross-motion for production of Mr. Grant’s file is dismissed.

Does Settlement Privilege Preclude Testimony Regarding the Parties’ Discussions?

[53] Ms. Laliberté seeks to compel responses to questions refused by Mr. Monteith at his questioning on the basis of settlement privilege. Specifically, Mr. Monteith was asked about statements made by some of his representatives who attended a settlement meeting between the parties and their counsel on July 25, 2012 (the “July 2012 meeting”). They include the Respondent’s corporate counsel, David Dunlop; his lawyer, Harold Niman; his Chief Financial Officer, Michael Brandt; and his experts, Andrew Freedman and Tim Martin.

[54] The Respondent opposes, arguing that the parties’ settlement discussions are subject to settlement privilege.

[55] In Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800, at para. 31, the Supreme Court stated that “[s]ettlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute.” The rationale for settlement privilege is to promote honest and frank discussions between the parties, without fear that the information disclosed will be used against them, in order to encourage settlement. The privilege applies even after a settlement is reached.

[56] An exception may arise where a there is a competing public interest that outweighs the public interest in encouraging settlement. The Supreme Court of Canada has found that the countervailing interests include misrepresentation, fraud or undue influence: see Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623, at para. 19.

[57] In Bertram v. Canada, 1995 FCA 3563, the Federal Court of Appeal held that the fraud exception applied in that case. The court stated that “where a party perverts the purpose of a settlement negotiation and attempts to use it to mislead the other party into changing its position, the privilege is lost. Once there is a prima facie indication of such an attempt to mislead … questions designed to elicit information and admissions about such attempt and the circumstances surrounding it are admissible.”

[58] In Ramsden v. Ramsden, 2013 BCSC 949, the court ordered the production of documents relating to the respondent husband’s income that he had relied on in mediation. At paras. 17-19, the court held that where a party has sought to mislead or deceive the other party through without prejudice communications, a court may set aside the privilege. Where the mediation process was tainted with evasiveness or deceit, the court’s role was to ensure proper disclosure to ensure that mediation remained a process with legitimacy.

[59] In my view, in this case, the countervailing interest in ensuring full and frank disclosure in settlement discussions outweighs the public interest in upholding the settlement privilege. The Applicant alleges that the Respondent misrepresented his assets and income during their settlement discussions. The Respondent has admitted to not disclosing the Green Turtle sale. As a result, there is more than a bald allegation of misrepresentation or a failure to disclose. What the Respondent and his representatives said at the parties’ meetings and mediation is not only highly relevant but central to the question of whether any misrepresentations were made by the Respondent or his representatives.

[60] The Applicant has established an exception to settlement privilege such that the substance of those discussions are proper areas for questioning.

[61] In his factum, the Respondent submits that questions relating to the July 2012 meeting were refused because it was a “distinct and separate circumstance” from the discussions that led to the ultimate resolution. The meeting took place before the Applicant brought her first Application in April 2013. The Respondent’s affidavits on the motion are silent about the July 2012 meeting and why it was distinct and separate from the parties’ settlement negotiations. As a result, there is no evidentiary basis to find that the July 2012 meeting was different from the parties’ settlement discussions generally.

[62] The Respondent did not oppose the Applicant testifying to what was discussed during their settlement discussions, but specifically refused to request information from the above-named representatives. As the Applicant notes, at the settlement meetings and mediation, the Respondent’s representatives were acting as his agents. They acted on his authority. There is no basis for the Respondent’s refusal to make inquiries with his representatives as to representations they made on his behalf.

[63] On a schedule to her Notice of Motion, the Applicant has identified the questions that fall under this category of refusals as Issue #1, Questions 1-8. [2] I refer to the question numbers under Issue #1. The question numbers from the questioning transcripts are in parentheses.

[64] Accordingly, the Respondent shall respond to the following questions that were refused at questioning:

• Question 1 (72): Did Mr. Dunlop state that the Respondent’s companies were on the verge of bankruptcy during the July 2012 meeting?
• Question 2 (73-74): To ask Mr. Dunlop if he made a statement to the effect that the companies were on the verge of bankruptcy during the July 2012 meeting.

[65] In my view, certain questions are overly broad and go beyond the scope of the Applicant’s pleadings. The Application does not plead that the Respondent or his representatives made misrepresentations about the Applicant’s claims or entitlement or that she relied on any such representations. In any event, it would not have been reasonable for the Applicant to rely on representations made by the Respondent’s representatives about her claims when she was represented by her own legal counsel.

[66] The Respondent shall respond to the following questions, as revised below:

• Question 3 (841-846): To ask Messrs. Dunlop, Brandt, and Niman whether representations were made to Ms. Laliberté and her team about Mr. Monteith’s financial circumstances during the first mediation session on August 20, 2013.
• Question 4 (736-739): To ask Messrs. Dunlop, Brandt, and Niman if any of them or the Respondent advised the Applicant or her counsel of the existence of a trust and an alleged loan owed by Mr. Monteith to his father and if any such representations were made during the July 2012 meeting.
• Question 8 (549): To ask Mr. Freedman and Mr. Martin if they recall making any representations, in writing or in discussion, to Ms. Laliberté, her experts or her lawyers about Mr. Monteith’s financial circumstances at any time leading up to the signing of the Agreement.

[67] The Respondent is not required to respond to the remaining questions:

• Question 6 (741): To ask Messrs. Dunlop, Brandt, and Niman if they have any recollection or notes of representations made to Ms. Laliberté about her entitlement to support and an equalization payment during the July 2012 meeting.
• Question 7 (747): To advise if the purpose of the July 2012 meeting was to intimidate Ms. Laliberté about the prospect of pursuing litigation.

Conclusion

[68] Accordingly, the Applicant’s motion for the production of Mr. Niman’s file is granted. The Applicant’s motion for responses to questions which the Respondent refused on the basis of settlement privilege is granted.

[69] The Respondent’s cross-motion for the production of Mr. Grant’s file is dismissed.

[70] The Respondent shall provide, within 21 days of this Endorsement, a copy of the complete file of his previous solicitor, Harold Niman, in relation to the parties’ prior court proceeding bearing Court File No. FS-13-385916 and the settlement of that proceeding that resulted in the Minutes of Settlement dated January 30, 2014 and the Separation Agreement dated April 8, 2014.

[71] This endorsement is effective as an order of the court without further need to enter or issue an order.

[72] If the parties are unable to resolve costs of the motion, the Applicant shall submit costs submissions, with a costs outline and any relevant offers to settle, by January 19, 2021. The Respondent’s costs submissions shall be submitted by January 29, 2021. No costs submissions shall exceed three double-spaced pages, excluding attachments. They may be submitted by email to my judicial assistant, at roxanne.johnson@ontario.ca. No reply submissions without leave. If no costs submissions are received within this time frame, the parties will be deemed to have resolved costs.

Nishikawa J. Date: January 4, 2021

Footnotes

[1] A draft amended answer was served on September 18, 2020. [2] Question 5 was resolved between the parties.