COURT FILE NO.: CV-20-646129-00CL DATE: 20220228 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MORGAN KENNETH SNOOK, Plaintiff AND: ROYAL STONE INTERLOCKING CONCRETE LTD., 1548166 ONTARIO LTD., ROYAL STONE CONSTRUCTION LTD., AQUASPA POOLS AND LANDSCAPE DESIGN LTD., G & G PROPERTIES INC., ROYAL STONE LANDSCAPING & DESIGN LTD., TESMA WAY HOLDINGS INC., ROYAL KING VALLEY HOLDINGS INC., GARAGE ROYALTY INC., UNIQUE LIFTS INC., BELLWORKS MANAGEMENT LTD., GARAGE ROYALTY PRODUCTS INC. and GIUSEPPE PRIZZI also known as PINO PRIZZI, Defendants
BEFORE: Cavanagh J.
COUNSEL: Jeffrey Radnoff for the Plaintiff Matthew Kersten, for the Defendants
HEARD: February 23, 2022
ENDORSEMENT
Introduction
1The plaintiff, Morgan Kenneth Snook, brings this action for various relief, including an order rectifying oppressive conduct, in relation to his assertion that he is a 50% shareholder in all the corporate defendants. The plaintiff’s lawyer of record is Matthew Valitutti and his firm Valitutti Law. Jeffrey Radnoff and his firm, Radnoff & Haworth, are co-counsel for the plaintiff with Mr. Valitutti. Mr. Radnoff is also counsel for the plaintiff on this motion.
2The corporate defendants are owned by the defendant Giuseppe Prizzi. The defendants have defended the action.
3The defendants bring this motion for (a) an order removing Matthew Valitutti and Valitutti Law as lawyers of record for the plaintiff; and (b) an order removing Jeffrey Radnoff and Radnoff Law Offices as lawyers of record for the plaintiff; and (c) an order that the Affidavit of Giuseppe Prizzi sworn on June 30, 2021 be filed under seal and be treated as confidential and not form part of the public record. The defendants’ motion is supported by the affidavit of Mr. Prizzi.
4The plaintiff opposes the defendants’ motion. The plaintiff filed the affidavit of Mr. Valitutti and the affidavit of Mr. Snook in response to this motion. Mr. Prizzi delivered a reply affidavit.
5The plaintiff separately moves for an order striking portions of Mr. Prizzi’s reply affidavit and certain evidence given by Mr. Snook on his cross-examination, and documents marked as exhibits on this cross-examination, on the grounds that they are (i) subject to settlement privilege, (ii) subject to the implied/deemed undertaking rule; and (iii) an abuse of the process of the court. At the hearing of these motions, counsel for the plaintiff advised that the plaintiff does not rely on the affidavit of Mr. Snook for this motion. As a result, counsel for the plaintiff and counsel for the defendants asked me not to decide the plaintiff’s motion.
6The affidavit evidence before me on this motion from Mr. Prizzi and Mr. Valitutti is starkly contradictory. Mr. Prizzi has sworn two affidavits (an initial affidavit and a reply affidavit) in which he states that Mr. Valitutti is a longstanding personal friend (their families had become close and shared the same small circle of friends) who, on numerous occasions when they met socially over several years, orally provided him with legal advice on an ongoing and as-needed basis. Mr. Prizzi’s evidence is that the legal advice was provided in relation to a variety of matters involving his business, including those specifically relating to Mr. Snook, his employment with the defendant companies, and the subject matter of the within action. The defendants submit that by acting as counsel of record for Mr. Snook in this action, Mr. Valitutti is in a clear conflict of interest and must be disqualified from continuing to act in this capacity.
7Mr. Valitutti has sworn a responding affidavit in which he denies that he and his family were close friends with Mr. Prizzi and his family. Mr. Valitutti’s evidence is that he has spoken with Mr. Prizzi on only two occasions, both of which involved nothing more than a general introductory greeting, and that he has never spoken with Mr. Prizzi on a one-on-one basis at social events. Mr. Valitutti denies that he has ever been involved in any kind of business relationship with Mr. Prizzi, in any capacity, involving the giving of legal advice or otherwise. Mr. Valitutti’s evidence is that none of the conversations or discussions described in Mr. Prizzi’s affidavit took place. He specifically denies giving advice to Mr. Prizzi about Mr. Snook or the issues raised in this action.
8On this motion, the onus is on the defendants to show that before he was retained by Mr. Snook, Mr. Valitutti had a prior lawyer and client relationship with Mr. Prizzi which is sufficiently related to Mr. Valitutti’s retainer with Mr. Snook that it leads to the inference that relevant and confidential information was imparted by Mr. Prizzi to Mr. Valitutti.
9For the following reasons, I conclude that the defendants have failed to discharge their onus of showing that there was a prior lawyer and client relationship between Mr. Valitutti and Mr. Prizzi.
Background Facts
Evidence of Giuseppe Prizzi
10I summarize below the affidavit evidence given by Mr. Prizzi that relates to the personal and business relationship that, he states, he had with Mr. Valitutti.
11Mr. Prizzi’s evidence is that he and Mr. Valitutti have a longstanding personal relationship and their families have known each other for over ten years and have become close. Mr. Prizzi’s evidence is that he met Mr. Valitutti through a mutual friend, Michael Ronco, who, like Mr. Valitutti, is a lawyer in the Vaughan-Woodbridge area and attended law school with Mr. Valitutti. Mr. Prizzi’s evidence is that since they were introduced, their families have become close, including their wives and children.
12Mr. Prizzi’s evidence is that his children attended the same school as Mr. Valitutti’s children and their wives would run into each other while dropping off and picking up the kids at school. He states in his affidavit that their families have attended various dinners and parties together, including at Michael Ronco’s home, for friendly “get-togethers”. Mr. Prizzi’s evidence is that his family and Mr. Valitutti’s family share the same small circle of friends, which is a tight knit group, and they all know one another quite well from attending social events together.
13Mr. Prizzi’s evidence is that in addition to this personal relationship, he also has a business relationship with Mr. Valitutti which began several years ago, and which has included Mr. Valitutti giving him legal advice.
14Mr. Prizzi’s evidence is there were occasions when Mr. Valitutti had questions about pools or landscaping, where he would come to Mr. Prizzi who would give him advice, price out projects for him, and assist him in whatever manner he could. As an example, Mr. Prizzi states that by at least 2019, if not earlier, Mr. Valitutti told him that he wished to have his landscaping work done as well as a pool constructed on his property, and he would be interested in hiring the services of one of the corporate defendants for this purpose. Mr. Prizzi states that representatives of the defendant corporations, including Mr. Snook, on his direction and at Mr. Valitutti’s request, attended Mr. Valitutti’s family home to prepare drawings for the design and construction of a pool in his backyard, as well as substantial landscaping.
15Mr. Prizzi appends as an exhibit to his affidavit a document described in his affidavit as the “concept design drawing” prepared with respect to Mr. Valitutti’s home. This document is a design document showing a pool, a cabana structure, a gas fireplace, and an outdoor kitchen/dining area. There are unidentified handwritten notes. The documents is named “Landscape Plan Concept 1” and is dated September 19, 2019.
16Mr. Prizzi states that as Mr. Valitutti was providing him with legal advice on an ongoing as-needed basis, he and Mr. Valitutti agreed that the defendant companies would not charge Mr. Valitutti for their attendance at the property or for the drawings for the work to be completed in this instance. Mr. Prizzi’s evidence is that this arrangement was on the understanding that there would be an exchange of services, and they specifically discussed and negotiated that Mr. Valitutti would not charge for the legal advice that he had provided and may in the future provide to Mr. Prizzi.
17Mr. Prizzi’s evidence is that in more recent years, when he had legal issues or concerns, he would go to Mr. Valitutti while attending social events, one-on-one, explain his situation to him and request his legal opinion and advice. Mr. Prizzi states that he trusted and valued the legal opinions offered to him by Mr. Valitutti, relied on the advice, and took steps that Mr. Valitutti advised were in his or his companies’ best interests. Mr. Prizzi states that he made it clear to Mr. Valitutti that these conversations were and would remain confidential between the two of them, especially in light of the confidential and sensitive nature of the subject matter of their discussions.
18Mr. Prizzi states that he had confidence in Mr. Valitutti’s legal advice, and as such, he was often the person to whom he would speak first with respect to his business affairs and/or the affairs of the corporate defendants as a result of them seeing each other at social events.
19Mr. Prizzi states in his affidavit that he has shared sensitive and confidential information with Mr. Valitutti including but not limited to information relating to:
a. corporate financial dealings with customers, clients and employees with respect to his various businesses (including the corporate defendants); b. corporate structure, organization and planning with respect to his various businesses; c. construction matters, including liens, liability and holdback; and d. internal affairs of his businesses, including the corporate defendants.
20Mr. Prizzi’s affidavit includes full descriptions of the type of advice he says was given in respect of each category.
21In his affidavit, Mr. Prizzi states that since in or about 2017, when he started having serious issues with Mr. Snook as an employee, and for several years thereafter, he discussed information, events, matters and/or situations with Mr. Valitutti. Mr. Prizzi provides fulsome descriptions of the particular matters relating to Mr. Snook and his position with the corporate defendants in respect of which he sought and obtained legal advice from Mr. Valitutti.
22Mr. Prizzi’s evidence is that in or around 2020, following the onset of Covid-19, he ran into Mr. Valitutti at an Italian bakery one afternoon where they sat down together, privately, and spoke more extensively about the situation regarding Mr. Snook’s employment. Mr. Prizzi provides a full description of various matters they discussed involving Mr. Snook including the advice that, he says, was given to him by Mr. Valitutti. Mr. Prizzi states that the private, one-on-one discussions were confidential and held on the understanding that Mr. Valitutti would continue to assist him with respect to his anticipated ongoing issues regarding Mr. Snook.
23Mr. Prizzi’s evidence is that he is deeply concerned that the information he has provided to Mr. Valitutti can or will be improperly used by Mr. Valitutti to the benefit of Mr. Snook in respect of the within litigation.
Evidence of Matthew Valitutti
24Mr. Valitutti was called to the Bar of Ontario in 2007. He has practised in Toronto during his entire career. From 2007 to July 3, 2020, Mr. Valitutti was employed as an associate lawyer at a Toronto law firm. On July 6, 2020, Mr. Valitutti started practising law as a sole practitioner under the firm name Valitutti Law.
25Mr. Valitutti maintained a general commercial litigation practice throughout his career. He does not practice in the areas of corporate/business/estate structuring or planning. In the past, he has done some construction lien files, but he does not practice in this area.
26With respect to Mr. Prizzi’s evidence with respect to the personal relationship between his family and Mr. Valitutti’s family, Mr. Valitutti evidence is that he does not have a close social relationship with Mr. Prizzi or his family, and that their families have not become close. He denies that Mrs. Prizzi is a friend with his wife. Mr. Valitutti denies that his family shares the same circle of friends as Mr. Prizzi’s family, or that there is any “tight-knit” social group of which he and Mr. Prizzi are members. Mr. Valitutti states that he knows only one potential mutual friend, Michael Ronco, who he met in law school, although he is not clear on the exact nature of Mr. Ronco’s relationship with Mr. Prizzi.
27Mr. Valitutti states that he has spoken with Mr. Prizzi on only two occasions, both of which were on an introductory basis, and that he does not recall ever saying anything more to him than a general introductory greeting. These occasions were at a backyard party (within a few years of 2006) when Mr. Prizzi introduced himself as “Pino”, and at a “parent’s night” in the hallway of his youngest daughter’s school during the 2018/2019 school year where they were standing close to one another in the hallway with a number of other parents and Mr. Valitutti greeted Mr. Prizzi and shook his hand.
28Mr. Valitutti’s evidence is that the only times he recalls speaking with Mr. Prizzi were these two occasions. He states that none of the conversations or discussions described in Mr. Prizzi’s affidavit took place.
29Mr. Valitutti’s evidence is that he has never been involved in any kind of business arrangement with Mr. Prizzi in any capacity, either that involved the giving of legal advice, or otherwise.
30Mr. Valitutti states in his affidavit that the alleged business agreement set out in Mr. Prizzi’s affidavit is completely false. His evidence is that he does not have occasion to ask questions about pools or landscaping and that he does not have a pool. He states that he has never spoken to Mr. Prizzi for advice, to price out projects for him, or to assist him about pools or landscaping, or for anything. He states that he did not agree to provide legal services to Mr. Prizzi in exchange for landscaping and pool consulting services provided by Mr. Prizzi or the corporate defendants. Mr. Valitutti states that he has never seen the document appended as Exhibit “A” to Mr. Prizzi’s affidavit and he describes this document as “fake”.
31Mr. Valitutti states in his affidavit that he has never met with Mr. Prizzi at an Italian bakery and that he has never spoken with Mr. Prizzi on a one-on-one basis at social events.
32Mr. Valitutti’s evidence is that he has never provided legal services to the defendants, he was never retained by the defendants for any type of legal work, he was never provided with any confidential information by any of the defendants, and he did not provide advice to any of the defendants about any legal matters, including any matters about Mr. Snook, including matters specifically related to the within litigation.
33In his reply affidavit, Mr. Prizzi reiterated that “Mr. Valitutti has been privy to the Defendants’ legal issues and concerns through his conversations with myself as described in my prior Affidavit dated July 1, 2021”.
34Mr. Snook provided affidavit evidence in response to this motion. At the hearing, counsel for Mr. Snook advised that the plaintiff did not rely on this affidavit for this motion.
Analysis
Legal Principles
35In MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, the Supreme Court of Canada addressed the proper approach for determining whether a lawyer for a party has a conflict of interest that disqualifies him or her from acting against a former client.
36The Supreme Court of Canada, at para. 48, held that, typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?
37In G. Raymond Chang Ltd. v. Shopcast Television, 2008 CarswellOnt 7094, Pepall J. (as she then was), at para. 25, addressed the onus of proof at the first stage of the analysis:
The onus of proof is on the client to show the relationship between the matters although the client need not disclose confidential information doing so. As stated by Granger J. in Moffat v. Wetstein (1996), 29 O.R. (3d) 371:
I am not suggesting that a client must disclose the exact specifics of the confidential information it seeks to protect, but some particulars are warranted, given the remedy sought. A party does not meet its onus of establishing that the prior relationship is sufficiently related to the present retainer, merely by making a bald assertion that the past relationship has provided the solicitor with access to insurance policies, partnership agreements, and litigation philosophy. At the very least, in order to discharge its onus, the client should describe how the solicitor gained that information, and why it is related to the matter at hand.
Goudge J.A. reiterated this principle in the Chapters Inc. v. Davies, Ward & Beck LLP (2001), 52 O.R. (3d) 566 (C.A.) decision:
It is clear from MacDonald Estate that the onus of showing the two retainers to be sufficiently related rests with the client asserting the conflict of interest. It is also clear that it is not enough for that client to rest on a bald assertion that the retainers are sufficiently related. There must be clear and cogent evidence from which the court can reach that conclusion.
38Once the client shows that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the lawyer, the court should infer that confidential information was imparted unless the lawyer satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge. See MacDonald Estate, at para. 49.
39The second question is whether the confidential information will be misused. A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail. See MacDonald Estate, at para. 50.
Have the defendants shown that Mr. Prizzi had a lawyer and client relationship with Mr. Valitutti?
40The defendants have the onus of showing that Mr. Prizzi had a lawyer and client relationship with Mr. Valitutti that is sufficiently related to Mr. Valitutti’s retainer with Mr. Snook that I should infer that confidential information was imparted to Mr. Valitutti.
41The defendants rely on the affidavit evidence given by Mr. Prizzi. I have described Mr. Prizzi’s evidence in considerable detail above. These assertions made by Mr. Prizzi are forcefully and unequivocally denied by Mr. Valitutti in his responding affidavit.
42Whether the defendants have satisfied their onus of proof at the first stage of the MacDonald Estate analysis must be determined by consideration of all of the evidence. For the defendants to succeed at this stage, I must prefer Mr. Prizzi’s evidence over the evidence of Mr. Valitutti, on a balance of probabilities.
43The defendants submit that the evidence of Mr. Prizzi should be preferred to the contradictory evidence of Mr. Valitutti, and that I should find that the defendants have satisfied their onus. The defendants make several submissions in support of this contention.
Evidence given by Mr. Valitutti on cross-examination about the school parents’ meeting
44Mr. Valitutti was cross-examined on his affidavit. The defendants rely on the following evidence given by Mr. Valitutti on his cross-examination:
Q. You say at Paragraph 8B, “We were standing close together in the hallway with a number of other parents.” A. Yes.
Q. So you include Mr. Prizzi in that sentence as being a parent. B. Okay. Listen, I will explain what happened. Like I said, everybody goes from room to room and you look at different themes and there’s a lot of walking around and waiting to get into one of the classrooms. I was standing in the hallway with a bunch of people and I’m assuming they were parents. So I used the word, “parent.”
Q. So you didn’t say anything to each other? C. I said to him - we were pretty much standing beside each other and he was talking to a couple people, two or three other people. When the - we were basically sort of beside each other. So I just said - I think what I said was when there was sort of a break in the conversation, I said, “You might not remember me, but I’m a friend of Mike Ronco.” And he said, “Yeah, yeah, how are you?” We shook hands and then he went off and continued talking to the other people. Didn’t give me another look.
45Mr. Valitutti was asked who the other people were and he responded: “I don’t know who the other people were. I was by myself. I don’t know who he was talking to”. He was then asked whether he remembers any of the other people at the parents’ night except for Mr. Prizzi and he responded that he does not know who the other people were.
46The defendants submit that having regard to Mr. Valitutti’s evidence that he remembers the encounter with Mr. Prizzi, but he does not remember who else was present, I should infer that, contrary to Mr. Valitutti’s evidence, this encounter was not merely an “introductory” conversation.
47I do not agree that such an inference should be drawn or that this evidence undermines Mr. Valitutti’s evidence in any way. The encounter, as described by Mr. Valitutti, was one in which he saw Mr. Prizzi talking to other parents, and he spoke with him at a break in the conversation. There is no reason that Mr. Valitutti would be expected to have known the other parents. His answers that he does not know the other parents present that night do not strike me as implausible. Mr. Valitutti’s evidence on cross-examination with respect to this encounter was consistent with his affidavit evidence.
Evidence by Mr. Valitutti that he attended a nearby Italian bakery several times a year
48With respect to Mr. Prizzi’s evidence concerning the chance meeting at the Italian bakery, the defendants rely on Mr. Valitutti’s evidence on cross-examination that there was an Italian bakery near his house (he was shown the location of the bakery on a map by screenshare) that he would visit four or five times a year. The defendants submit that this evidence supports Mr. Prizzi’s evidence that the meeting at the Italian bakery occurred.
49Mr. Prizzi did not state in his affidavit the name of the bakery he attended on the occasion in question. Mr. Prizzi does not say that he does not know the name of the bakery, and the reason he did not state the name of the bakery is not apparent. Mr. Prizzi does not say where the Italian bakery is. The fact that Mr. Valitutti went to a local bakery occasionally does not add any credence to Mr. Prizzi’s evidence about this encounter, which Mr. Valitutti denies.
Evidence in respect of consultations about a pool and landscaping and the agreement for an exchange of services
50Mr. Prizzi explains that he did not receive any invoices from Mr. Valitutti for the legal advice he regularly received by stating that Mr. Valitutti approached him seeking for consultation services for a pool and landscaping work at Mr. Valitutti’s home. He states that they discussed and negotiated that Mr. Valitutti would not charge legal fees for the legal advice he had provided and may in the future provide in exchange for Mr. Prizzi’s agreement not to charge Mr. Valitutti for his employees’ attendance at Mr. Valitutti’s home, and the “design, drawings, renderings and quote(s) for the work to be completed in this instance”.
51Mr. Valitutti states that Mr. Prizzi’s evidence is false and incredible, and that he had not seen the document appended as an exhibit to Mr. Prizzi’s affidavit until the motion materials were served.
52I do not agree that Mr. Prizzi’s evidence or the document appended as an exhibit to his affidavit undermines Mr. Valitutti’s evidence in any way. It would be possible for someone to prepare such a drawing without receiving authorization from the homeowner. Mr. Prizzi states that his company prepared renderings, drawings and quotes for an anticipated project at Mr. Valitutti’s home. Other than one drawing, no renderings or quotes were put into evidence, although Mr. Prizzi says they were prepared. Mr. Prizzi does not state that these documents are lost or otherwise unavailable.
53Mr. Prizzi states that he directed representatives of the defendant companies to attend at Mr. Valitutti’s home to prepare the renderings, drawings and quotes, but none of these persons tendered evidence attesting to the fact that they attended at Mr. Valitutti’s home. The anticipated project involved construction of a pool and substantial landscaping, but there is no record of any written communication between Mr. Prizzi, or anyone else at the defendant companies, and Mr. Valitutti in respect of this project.
54Mr. Prizzi’s evidence about the pool and landscaping project and the drawing appended as an exhibit to Mr. Prizzi’s affidavit do not call into question Mr. Valitutti’s evidence denying that he engaged Mr. Prizzi or his companies to provide such services.
Conflict in the evidence given by Mr. Valitutti and by Mr. Snook
55The defendants submit that Mr. Valitutti’s evidence was contradicted by the evidence of Mr. Snook and this contradiction undermines the credibility that should be given to Mr. Valitutti’s evidence.
56When he was cross-examined, Mr. Valitutti was questioned about which version of Mr. Prizzi’s affidavit was provided to Mr. Snook for review. He was asked whether he had shown the unredacted affidavit of Mr. Prizzi to Mr. Snook and he responded, “I think so, yes”.
57When Mr. Snook was cross-examined, it was put to him that he only received a redacted version of Mr. Prizzi’s affidavit and he answered, “[c]orrect”.
58The defendants submit that this contradiction undermines Mr. Valitutti’s evidence. I do not agree. If Mr. Valitutti intended to give false evidence in response to this question, it would have been in his interest to conceal that an unredacted version of the affidavit was given to Mr. Snook. My assessment is that he answered this question honestly. The inconsistency of Mr. Valitutti’s evidence with Mr. Snook’s evidence on this point does not affect the credibility to be afforded to Mr. Valitutti’s evidence.
59The defendants also submit that given Mr. Valitutti’s evidence, I should infer that Mr. Valitutti failed to preserve the confidentiality of information he received from Mr. Prizzi when he was retained by Mr. Snook. This submission would become relevant if the defendants succeed in showing that there was a prior retainer of Mr. Valitutti by Mr. Prizzi.
Evidence relating to family and friends
60The defendants submit that the evidence that Mr. Prizzi’s children and Mr. Valitutti’s children attended the same school bolters the credibility to be given to Mr. Prizzi’s evidence and weakens the strength of Mr. Valitutti’s evidence because it is likely that, as parents of children at the same school (a relatively small private school with about 150-200 students), they would have known each other well. I disagree. Other than Mr. Prizzi’s evidence, there is no evidence that Mr. Valitutti knew him through interactions with each other as parents of students at the school. No other parent provided evidence that Mr. Prizzi and Mr. Valitutti knew each other through the school; not even Mrs. Prizzi.
61The defendants rely on the evidence that (i) Mr. Valitutti and Mr. Prizzi are both friends with Mr. Ronco, who introduced them; (ii) Mario Cortez and his wife are friends of the Prizzi and the Valitutti families, (iii) Mr. Cortez has had a personal and professional relationship with Mr. Valitutti since around 2008 or 2009 and Mr. Cortez referred Mr. Snook to Mr. Valitutti; and (iv) Mr. Valitutti attended social functions with Mr. Ronco, including a bachelor’s party where Mr. Prizzi may have been in attendance. The defendants submit that this evidence supports Mr. Prizzi’s evidence that Mr. Valitutti and Mr. Prizzi shared the same small circle of friends, that he describes as a “tight knit group”, and undermines Mr. Valitutti’s denial of this assertion.
62I disagree. The fact that two persons live in the same area of Toronto, have children who attend the same school, and have a few mutual friends does not lead to an inference that these persons are close family friends. Mr. Prizzi gives evidence in his affidavit based on information from his wife (at paras. 12 and 13) but this evidence does not address the close family friendship between the two families. None of the friends in the small circle to which Mr. Prizzi refers gave evidence on this motion. Other than Mr. Prizzi’s assertions, which Mr. Valitutti denies, there is no evidence that the Prizzi family and the Valitutti family are close and shared the same small circle of friends.
63Mr. Valitutti’s evidence was not undermined or called into question by cross-examination.
64I regard it as noteworthy that Mr. Prizzi has not provided evidence of a single email, text message, letter, calendar entry, cell phone record, restaurant receipt, social media communication, invoice, quotation, or other electronic or hard copy document that supports his assertion that he was in a close social or professional relationship with Mr. Valitutti.
65I consider it to be unusual that two persons who have been close friends over many years, whose families are friends, and who share the same small circle of friends, would not communicate with each other in a way that would leave a record through, for example, emails, texts, cell phone records, or calendar entries. No explanation was provided by Mr. Prizzi for the complete absence of any objective evidence of his personal or professional relationship with Mr. Valitutti (other than a single pool and landscaping drawing, that I have addressed). Counsel for the defendants submits that such records were not requested by the plaintiff’s counsel through cross-examination. I do not agree that the plaintiff had an obligation to ask for such records. The onus is on the defendants to show a lawyer and client relationship, and no cross-examination would be needed if the evidence tendered was insufficient.
66I also regard it as unusual that a client would have no written records in circumstances where a lawyer is retained to provide legal advice on an ongoing basis and on a variety of business matters, even if the advice was given orally, on social occasions, in one-on-one discussions. The nature of the detailed advice on a variety of legal matters described by Mr. Prizzi in his affidavit is such that confirmatory communications of the advice would be expected. This may not be the case where a lawyer gives “one-off”, casual, oral, and gratuitous advice to a friend or family member, but the nature of the professional relationship described by Mr. Prizzi is more formal because, he says, they “discussed and negotiated” that there would be ongoing legal advice given, with charges to be paid through an exchange of services. Mr. Prizzi’s evidence is not that Mr. Valitutti was giving casual and gratuitous legal advice. His evidence is that Mr. Valitutti was giving legal advice to him on a variety of matters affecting his companies and upon which he relied. Mr. Prizzi agrees that Mr. Valitutti would be compensated for his professional advice through an exchange of services. Given the nature of the advice as described by Mr. Prizzi, it is, in my view, unlikely that legal advice of the nature described would not lead to any follow up communications, with some form of objective record, between Mr. Prizzi and Mr. Valitutti addressing the matters said to have been discussed.
67Counsel for the defendants describes the credibility issues that arise on this motion, where the evidence of the two witnesses conflicts diametrically on the central factual issues, as raising a “he said / he said” credibility issue for determination by the court. But, in this case, it was open to the defendants, the parties with the burden of proof, to tender evidence from other persons to support Mr. Prizzi’s evidence that he and Mr. Valitutti had a close personal and professional relationship over many years. There were many persons, including the mutual friends, employees of the defendant companies (about the pool and landscaping consulting services), and Mrs. Prizzi, who could have given evidence to support Mr. Prizzi’s assertions.
68Although Mr. Prizzi states that he and his wife share a close circle of friends with Mr. Valitutti and his wife, none of the mutual friends has given evidence to support Mr. Prizzi’s statements. Mr. Prizzi does not specify in his affidavit who the mutual friends are (except for Mr. Ronco, who introduced them, and Mr. Cortez), and he does not provide information about where and when the various social gatherings took place, or who was there. As I have noted, neither Mr. Ronco or Mr. Cortez gave evidence through an affidavit or as a witness on a pending motion.
69Mr. Prizzi gives evidence based on information from his wife that she was shocked when she learned of the allegations made by Mr. Snook against his companies, and that she could not believe that Mr. Snook was telling people that he was Mr. Prizzi’s partner. Mrs. Prizzi does not, however, give evidence through an affidavit, or even through information provided to Mr. Prizzi, that supports her husband’s evidence that the Prizzi family was very close with Mr. Valitutti’s family, and that they share a close circle of friends. The absence of any evidence from Mrs. Prizzi on these issues is conspicuous because she would be in a position to provide supportive evidence on some of the most contentious factual issues.
70The defendants chose not to tender evidence from anyone other than Mr. Prizzi to support the existence of a lawyer and client relationship between Mr. Valitutti and Mr. Prizzi. I do not suggest that the defendants have a legal obligation to provide corroborative evidence, however, they need to provide sufficient evidence to satisfy their onus of proof.
71In the absence of any written communications between Mr. Prizzi and Mr. Valitutti, any other objective documentary evidence supporting Mr. Prizzi’s assertions, or any supportive evidence from other witnesses, I am left only with Mr. Prizzi’s assertions that are forcefully disputed by Mr. Valitutti. Given Mr. Valitutti’s evidence, Mr. Prizzi’s declaratory assertions do not constitute the type of clear and cogent evidence that is required for a court to conclude that there was a prior lawyer and client relationship that is sufficiently related to the retainer in respect of which a lawyer is sought to be disqualified.
72I do not find that Mr. Prizzi’s evidence should be preferred to the evidence given by Mr. Valitutti.
73I conclude that the defendants have failed to discharge their onus of showing that Mr. Valitutti received confidential information attributable to a lawyer and client relationship relevant to the matter at hand. Given this conclusion, there is no basis to disqualify Mr. Valitutti from continuing to act as counsel of record for Mr. Snook in this action. There is also no basis to disqualify Mr. Radnoff or his firm from representing Mr. Snook. Given this conclusion, there is no need for me to address whether Mr. Valitutti received confidential information attributable to a prior lawyer and client relationship or the question at the second stage of the MacDonald Estate analysis.
Disposition
74For these reasons, the defendants’ motion for an order (i) removing Mr. Valitutti and his firm as lawyers of record for the plaintiff; and (ii) removing Mr. Radnoff and his firm as lawyers of record for the plaintiff is dismissed.
75The defendants also seek an order that the affidavit of Mr. Prizzi sworn June 30, 2021 be filed under seal, treated as confidential, and not form part of the public record on the ground that the affidavit includes information that is protected from disclosure by lawyer and client privilege. Given my decision, I ask counsel for the defendants to advise whether they still seek this relief. If they do, I ask counsel to arrange a case conference with me to discuss a timetable for additional submissions in relation to the request for this relief. Counsel should also address what, if any, order is needed with respect to the plaintiff’s motion.
76If the parties are unable to resolve costs, the plaintiff may make written submissions (not longer than 5 pages, excluding costs outline) within 10 days. The defendants may make written responding submissions (also not longer than 5 pages, excluding costs outline) within 10 days thereafter. The plaintiff may make reply submissions (not longer than two pages), if so advised, within 5 days thereafter.
Cavanagh J.
Date: February 28, 2022