Kasian et al v. Detsky et al, 2022 ONSC 6414

Court File and Parties

Court File No.: CV-21-00664409-0000 Date: 2022-11-15 Superior Court of Justice - Ontario

Re: Diana Kasian et al., Applicants And: Benjamin J. Detsky et al., Respondents

Before: Vella J.

Counsel: Anna Rezaei, for the Applicants

Heard in Writing: November 14, 2022

Reasons: Letter of Request

1The Applicants apply for an order to enforce the Letter of Request of the plaintiffs, dated October 30, 2020, pursuant to the Order of Judge Mark V. Mooney of the Superior Court of the State of California for the County of Los Angeles dated March 23, 2021.

2The application is brought under s. 60 of the Ontario Evidence Act, R.S.O. 1990, c. E-23, sections 46-47 of the Canada Evidence Act, R.S.C. 1985, c. C-5, and r. 14.05(h).

3The application was originally opposed, but now is unopposed by the Respondents. The Respondents are represented by lawyers of record in Ontario.

4The Respondents are the Canadian accountants to Blake Leibel. Mr. Leibel was criminally convicted of murdering the late Iana Kasian, the mother of the Applicant, Diana Kasian, and daughter of the Applicant, Olga Kasian.

5The Applicants, including the Estate of Iana Kasian, received a civil judgment against Mr. Leibel, arising from the wrongful death of the late Iana Kasian, in the sum of 41.6 million dollars ($41,600,000.00 USD).

6The Letter of Request arises from a claim relating to fraudulent conveyance in connection with an action in California by the Applicants against Mr. Leibel and others (including Amada Braun) in an effort to collect on the wrongful death judgment.

7The evidence before me consists of an affidavit by Thomas J. Conroy sworn May 26, 2022 together with the exhibits. Mr. Conroy is the Applicants’ American attorney in the California Action.

8The Applicants, through the Letter of Request, seek to examine Mr. Detsky who is an accountant and partner at Yale PGC LLP, located in Toronto, Ontario. The Applicants also seek production from Mr. Detsky and Yale PGC of documents relating to services provided to their client, Mr. Leibel, as specified at paragraph e) (i) to (x) of the Amended Notice of Application.

9The Application is granted for the following reasons.

Analysis

10I am satisfied that this matter is appropriate for disposition in writing under r. 14.05(h) as there are no material facts in dispute that would require a trial.

Issue 1: Statutory Requirements are Met

11Section 60 of the Ontario Evidence Act provides:

Evidence for foreign tribunals

60 (1) Where it is made to appear to the Superior Court of Justice or a judge thereof, that a court or tribunal of competent jurisdiction in a foreign country has duly authorized, by commission, order or other process, for a purpose for which a letter of request could be issued under the rules of court, the obtaining of the testimony in or in relation to an action, suit or proceeding pending in or before such foreign court or tribunal, of a witness out of the jurisdiction thereof and within the jurisdiction of the court or judge so applied to, such court or judge may order the examination of such witness before the person appointed, and in the manner and form directed by the commission, order or other process, and may, by the same or by a subsequent order, command the attendance of a person named therein for the purpose of being examined, or the production of a writing or other document or thing mentioned in the order, and may give all such directions as to the time and place of the examination, and all other matters connected therewith as seem proper, and the order may be enforced, and any disobedience thereto punished, in like manner as in the case of an order made by the court or judge in an action pending in the court or before a judge of the court. R.S.O. 1990, c. E.23, s. 60 (1); 2000, c. 26, Sched. A, s. 7 (2).

Payment of expenses of witness

(2) A person whose attendance is so ordered is entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in the Superior Court of Justice. R.S.O. 1990, c. E.23, s. 60 (2); 2000, c. 26, Sched. A, s. 7 (2).

Right of refusal to answer questions and to produce documents

(3) A person examined under such commission, order or process has the like right to object to answer questions tending to criminate himself or herself, and to refuse to answer any questions that, in an action pending in the court by which or by a judge whereof or before the judge by whom the order for examination was made, the witness would be entitled to object or to refuse to answer, and no person shall be compelled to produce at the examination any writing, document or thing that the person could not be compelled to produce at the trial of such an action. R.S.O. 1990, c. E.23, s. 60 (3).

Administration of oath

(4) Where the commission, order or other process, or the instructions of the court accompanying the same, direct that the person to be examined shall be sworn or shall affirm, the person so appointed has authority to administer the oath to the person or take his or her affirmation. R.S.O. 1990, c. E.23, s. 60 (4).

Sections 46-47 of the Canada Evidence Act provides:

Order for examination of witness in Canada

46(1) If, on an application for that purpose, it is made to appear to any court or judge that any court or tribunal outside Canada, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to that matter of a party or witness within the jurisdiction of the first mentioned court, of the court to which the judge belongs or of the judge, the court or judge may, in its or their discretion, order the examination on oath on interrogatories, or otherwise, before any person or persons named in the order, of that party or witness accordingly, and by the same or any subsequent order may command the attendance of that party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order and of any other writings or documents relating to the matter in question that are in the possession or power of that party or witness.

Video links, etc.

(2) For greater certainty, testimony for the purposes of subsection (1) may be given by means of technology that permits the virtual presence of the party or witness before the court or tribunal outside Canada or that permits that court or tribunal, and the parties, to hear and examine the party or witness.

Enforcement of the order

47 On the service on the party or witness of an order referred to in section 46 and of an appointment of a time and place for the examination of the party or witness signed by the person named in the order for taking the examination, or, if more than one person is named, by one of the persons named, and on payment or tender of the like conduct money as is properly payable on attendance at a trial, the order may be enforced in like manner as an order made by the court or judge in a cause pending in that court or before that judge.

12I am satisfied that the Applicants meet the four statutory requirements for enforcement of the subject letter of request as follows:

(a) The requested obtaining of the evidence has been duly authorized by the Superior Court of the State of California via the Order of the Honourable Mark V. Mooney;

(b) The respondent witnesses, from whom evidence is sought, is within the jurisdiction of this court;

(c) The evidence that is sought is in relation to a proceeding pending before the California Superior Court; and

(d) The California Superior Court is a court of competent jurisdiction.

Issue 2: Discretion of the Court Ought be Exercised to Enforce the Letter of Request

13Furthermore, pursuant to the principles of international comity and reciprocity, the Letter of Request ought to be enforced by this court as it does not impose limitations or infringements on Canadian sovereignty, and justice requires that the evidence be ordered (France (Republic) v. DeHavilland Aircraft of Canada Ltd., 1991 CanLII 7180 (ON CA), 1991 CarswellOnt 366, [1991] O.J. No. 1038, [1992] I.L.Pr. 589, 13 W.C.B. (2d) 377, 1 C.P.C. (3d) 76, 3 O.R. (3d) 705, 49 O.A.C., 65 C.C.C. (3d) 449 (ON CA)).

14The latter considerations, that animate the principles underlying the enforcement of foreign letters of request for what used to be called “commission evidence”, justify the enforcement of the subject Letter of Request after a consideration of the relevant factors that inform the exercise of this court’s discretion (Presbyterian Church of Sudan v. Taylor, 2006 CanLII 32746 (ON CA), 2006 CarswellOnt 5781, [2005] O.J. No. 3822, [2006] O.J. No. 3822, 151 A.C.W.S. (3d) 571, 215 O.A.C. 140, 275 D.L.R. (4th) 512, 33 C.P.C. (6th) 27 (ON CA); McFadden Lyon Rouse LLC v. Lookkin, 2012 ONSC 2243, 2012 CarswellOnt 4311, 214 A.C.W.S. (3d) 102, 39 C.P.C. (7th) 432).

The evidence sought is relevant

15It is self-evident from the affidavit evidence that the Applicants have demonstrated that there are reasonable grounds to probe Mr. Leibel’s assets in Canada, and that the Respondents were and are his accountants who handle Mr. Leibel’s financial affairs in Canada. The sought after evidence is clearly relevant to the issues raised in the fraudulent conveyance action. There is evidence that supports the proposition that Mr. Leibel likely fraudulently conveyed at least some of his assets in Canada to Ms. Braun (who is a defendant in the fraudulent conveyance action) and possibly others after he was in police custody for the murder of the late Iana Kaisan, as further detailed in the affidavit of Mr. Conroy and notably the exhibits which include a jailhouse conversation and the deposition of Ms. Braun.

16The requested evidence will therefore assist the Applicants in determining how much of Mr. Leibel’s assets, if any, have been fraudulently conveyed from his possession or control since the murder and how much may or may not remain of his finances in Canada and therefore available to satisfy the wrongful death judgment debt.

The evidence sought is necessary for trial and will be adduced at trial if admissible

17The evidence sought is necessary for the trial of the fraudulent conveyance action. The evidence will go to proving whether Mr. Leibel fraudulently conveyed assets while in police custody and whether there are any assets that have yet to be discovered that may be available for seizure in satisfaction of the judgment debt.

18The affidavit evidence confirms that this requested evidence will be used solely in preparation and presentation of evidence at the fraudulent conveyance action.

The evidence is not otherwise obtainable

19According to the evidence, the Applicants have not received any funds towards payment of the wrongful death judgment debt.

20The Applicants’ evidence obtained on discovery has demonstrated that the majority of Mr. Leibel’s assets in the United States were transferred to Ms. Braun after the date of the murder of the late Iana Kasian. The Applicants have exhausted efforts to discover the location of Mr. Leibel’s assets through the American discovery process. The key gap in the applicants’ information concerning Mr. Leibel’s financial situation is the Canadian piece.

21Furthermore, Mr. Detsky has (appropriately, in light of his professional obligations) declined to voluntarily appear to testify and produce the requested documents.

22The evidence sought cannot be obtained other than through examination of Mr. Detsky and production of the requested records from Mr. Detsky’s accounting firm, Yale PGC.

The Order is not Contrary to Public Policy

23The fraudulent conveyance action to enforce the wrongful death judgment debt is not contrary to public policy. These causes of action are well known to the Ontario courts.

24Furthermore, the order for examination of a nonparty and production of documents from a nonparty are also vehicles available in appropriate circumstances to Ontario litigants. I am satisfied that the Applicants have exhausted other methods for obtaining this information, and that the sought evidence is not based on mere or unsupported speculation – it is not a fishing expedition.

25The proposed order will not cause Mr. Detsky to violate his code of professional conduct. While the CPA Code of Professional Conduct provides that a certified accountant owes a duty of confidentiality to their clients, r. 208.1(c) permits disclosure of such confidential information, absent client consent, when “such information is required to be disclosed by order of lawful authority”. The proposed order would constitute such “lawful authority” (Armadale Properties Ltd. v. Peregrine Hunter Properties Ltd., 2007 CarswellOnt 3744; Minister of National Revenue v. KPMG LLP, 2016 FC 1322, 2016 CF 1322, 2016 CarswellNat 6263, 2016 CarswellNat 9887, [2017] 3 C.T.C. 1, 2016 D.T.C. 5133, 273 A.C.W.S. (3d) 432).

26Furthermore, the Respondents have the rights under s. 60(3) of the Ontario Evidence Act, should circumstances require assertion of those rights.

The Documents Sought are Identified with Reasonable Specificity

27The documents that are sought by the Applicants are identified at subparagraphs e)(i) through (x) of the Amended Notice of Application. The scope of the documents sought are sufficiently described and relevant to the issues in the fraudulent conveyance action. Furthermore, the time period for the documents sought has been restricted.

The Order Sought is not Unduly Burdensome

28The Order sought is not unduly burdensome given the degree of specificity of the documents identified, and the logical inference that the Respondents will have these documents organized in a file (be it electronic or otherwise).

29Furthermore, the Applicants have offered to pay reasonable monetary compensation for the time and effort necessary for the Respondents to comply with the Order sought, as well as the cost of Mr. Detsky’s attendance at his examination under oath.

30Section 60(2) of the Ontario Evidence Act sets out the minimum statutory obligations of the examining parties.

Disposition and Order

31Therefore, the following relief is granted in favour of the Applicants against the Respondents:

(a) An Order enforcing the Letter of Request issued by the Superior Court of the State of California for the County of Los Angeles on March 23, 2021;

(b) An Order that the Respondent, Mr. Detsky, attend at the offices of Network Reporting & Mediation in Toronto, Ontario, within forty-five (45) days of this Order, or at a time mutually agreed upon between the Applicants and this Respondent upon service of a Notice of Examination in accordance with r. 34 to be examined under oath pursuant to the Letter of Request;

(c) An Order that the examination of Mr. Detsky be conducted by the attorneys for the Applicants in the California Action (Kasian et al v Leibel et al, Case No. 18STCV08764) or their agents in accordance with the California Code of Civil Procedures and the California Code of Evidence and be video recorded and committed to writing and sent to the attorneys for the Applicants in the California Action; and

(d) An Order that the Respondents, within thirty (30) days of this Order produce the documents identified in subparagraphs e)(i) through (x) of the Amended Notice of Application.