Court File and Parties

COURT FILE NO.: CV-20-642688 RELEASED: 2023/08/31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Reuben Moses and Laura Harkin v. Metro Hardware and Maintenance Inc., 2188661 Ontario Inc., Rosy Moses and The Estate of Abraham Moses

And by counterclaim: Metro Hardware and Maintenance Inc., 2188661 Ontario Inc., Rosy Moses and The Estate of Abraham Moses v. Reuben Moses, Laura Harkin and 2720584 Ontario Inc. o/a Castle Glass & Locks

BEFORE: Associate Justice Graham HEARD: August 9, 2023

COUNSEL: Gregory Sidlofsky for the plaintiffs (moving parties) Catherine Francis for the defendants Metro Hardware and 218 Ontario Ranjan Das for the defendants Rosy Moses and The Estate of Abraham Moses

Reasons for Decision

(Plaintiffs’ motion to compel answers to questions refused at the examination for discovery of the defendant Rosy Moses)

[1] The background to this litigation is as contained in paragraphs 1-10 of my Reasons for Decision dismissing the plaintiffs’ motion to remove Minden Gross as lawyers of record for the defendants Metro Hardware and Maintenance Inc. (“Metro Hardware”) and 2188661 Ontario Inc. (“218 Ontario”) (Citation: Moses v. Metro Hardware, 2023 ONSC 4137):

[1] This action is a dispute among family members over the ownership and control of the hardware business operated by the defendant Metro Hardware and Maintenance Inc. (“Metro Hardware”). The dispute also concerns the ownership of the defendant 2188661 Ontario Inc. (“218 Ontario”) which owns the property on Martin Ross Avenue in North York, Ontario at which Metro Hardware operates.

[2] Metro Hardware was incorporated on December 23, 2008. Aby Moses and his wife Rosy Moses were Metro Hardware’s sole directors and Aby Moses was its controlling shareholder until his death on July 12, 2019. Aby Moses and Rosy Moses also jointly held all 100 shares in 218 Ontario. Rosy Moses and The Estate of Abraham Moses are also named as defendants and are represented by different counsel than counsel for the two defendant corporations. In their statement of defence, Rosy Moses pleads that she is the sole executor and trustee of the Estate of Aby Moses.

[3] The plaintiffs Reuben Moses and Laura Harkin are a married couple who are respectively the son and daughter-in-law of Rosy Moses and the late Aby Moses. Based on his contribution to the growth of Metro Hardware’s business, and assurances allegedly made to him by his father Aby Moses, Reuben Moses claims from Metro Hardware a 100% interest in the business and assets of Metro Hardware and claims from 218 Ontario a 50% interest in the Martin Ross Avenue property. Reuben Moses and Laura Harkin, who were both employees of Metro Hardware, also claim damages for constructive dismissal.

[4] The defendants Metro Hardware and 218 Ontario assert a counterclaim against the plaintiffs and 2720584 Ontario Inc. o/a Castle Glass & Locks (“272 Ontario”) on the basis that on October 8, 2019, Reuben Moses and Laura Harkin incorporated 272 Ontario for the purpose of competing with Metro Hardware, and after resigning from Metro Hardware, they hired 10 Metro Hardware employees to work in their new business.

[5] The plaintiffs issued their statement of claim on June 18, 2020 and immediately obtained an ex parte order for a Certificate of Pending Litigation (“CPL”) on the Martin Ross Avenue property. On November 2, 2020, Myers J. discharged the CPL, partly based on material non-disclosure by the plaintiffs, and ordered the plaintiffs to pay costs of $69,000.00. The plaintiffs’ motion to the Divisional Court for leave to appeal Myers J.’s decision was dismissed on February 12, 2021.

[6] On April 23, 2021, the plaintiffs amended their statement of claim to increase the quantum of damages claimed and to add a claim for oppression. On May 14, 2021, the defendants Metro Hardware and 218 Ontario (“the defendant corporations”) retained their current counsel, Catherine Francis of Minden Gross LLP, to defend the action. As reflected in the list of counsel who appeared on this motion, the defendants Rosy Moses and The Estate of Abraham [Aby] Moses are represented separately by Ranjan Das of the firm Berkow Youd Lev-Farrell Das LLP (“BYLD”).

[7] Both sets of defendants have delivered fresh as amended statements of defence and the defendant corporations’ pleading includes their counterclaim. Affidavits of documents have been exchanged and examinations for discovery of all parties and a mediation have been held. Both sets of parties have scheduled refusals motions to proceed on August 9, 2023.

[8] Pursuant to a will that he executed on April 15, 2019, Aby Moses left all of his estate to his wife Rosy Moses, so Rosy Moses inherited all of his shares in Metro Hardware and became its president and sole director. This was the same disposition of Aby Moses’ assets contemplated by his previous will executed in 1996. Aby Moses’s shares in 218 Ontario vested in Rosy Moses by right of survivorship.

[9] On August 21, 2020, Reuben Moses issued a Notice of Application against respondents Rosy Moses, the Estate of Aby Moses, and his sister Rachel Moses to challenge Aby Moses’s 2019 will. The respondents, represented by Ms. Francis of Minden Gross LLP, brought a motion to dismiss or strike the Estate Application on the basis that Reuben Moses had no standing to challenge the will. . . .

[10] . . . . On January 25, 2021, Cavanagh J. dismissed the Estate Application with costs against Reuben Moses. The Court of Appeal upheld this dismissal on September 28, 2021.

This Motion

[2] The plaintiffs Reuben Moses and Laura Harkin were examined for discovery on March 28 and 29, 2022 and the defendant Rosy Moses was examined for discovery in her personal capacity and on behalf of the other defendants on April 1 and May 5, 2022. Both sets of parties brought motions for orders compelling the opposing parties to answer undertakings and questions refused from their examinations for discovery.

[3] When counsel first appeared at the case conference to schedule the refusals motions, plaintiffs’ counsel advised that they also wished to bring a motion to remove Minden Gross as lawyers of record for the defendants Metro Hardware and 218 Ontario on the basis that Rachel Moses, the sister of the plaintiff Reuben Moses and a partner at that firm, would inevitably be a witness at trial. I heard that motion on April 25, 2023 and released the Reasons for Decision referred to above on July 13, 2023.

[4] Although both refusals motions were scheduled to be argued on August 9, 2023, the plaintiffs’ motion took the entire day and it was necessary to adjourn the defendants’ motion. On August 11, 2023, I released an endorsement with respect to the defendants’ motion in which I addressed plaintiffs’ counsel’s concern with respect to the defendants’ use on their refusals motion of the affidavit of Rachel Moses sworn January 12, 2023 in response to the motion to remove Minden Gross.

[5] There were a total of 29 questions in issue on the plaintiffs’ motion to compel answers to questions refused at the examination for discovery of Rosy Moses. Counsel argued the questions in the following groups (using the Refusal (“R.”) numbers from the plaintiffs’ chart): Rs. 1-7, 21, 22; Rs. 8-20; Rs. 23-29. When necessary to refer to question numbers from the transcripts of Ms. Moses’s examination for discovery, I use the abbreviation “Q.”.

[6] The parties are essentially in agreement on the law with respect to relevance of questions at examinations for discovery:

• Under Rule 31.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 “A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action . . . .”
• “The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings.” (See: Ontario v. Rothmans Inc., 2011 ONSC 2504 at para. 129.)
• “Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely: R. v. J.-L.J., 2000 SCC 51. Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the positions of the parties.” (See: R. v. Pilon, 2009 ONCA 248 at para. 33)

[7] The claim of the plaintiff Reuben Moses for an interest in the two corporate defendants Metro Hardware and 218 Ontario is based on proprietary estoppel, the elements of which are:

(1) Representations or assurances made to the claimant, on the basis of which the claimant expects to enjoy some right or benefit over property; (2) The claimant relies on that expectation by doing or refraining from doing something, and the claimant’s reliance is reasonable in all the circumstances; and (3) The claimant suffers a detriment as a result of the reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on its word.

(See: Cowper-Smith v. Morgan, 2017 SCC 61 at para. 15, cited in Metske v. Metske, 2023 ONSC 1032 at para. 286)

[8] I will refer to other case law below as it relates to individual questions.

[9] My rulings on the disputed questions are set out below in the order that each group of questions was argued.

Rulings on Disputed Questions

Rs. 1-7, 21, 22

R. 1: Rosy, sitting here today is it your intention that Rachel gets everything upon your passing?

[10] The plaintiffs rely on para. 11 of the statement of claim in which they plead that Aby Moses’s promises, that upon his death the entire business of Metro and 50% of the building on Martin Ross Avenue would belong to Reuben, were also made by Aby as Rosy’s agent and bind her as well.

[11] The defendants submit that the issue with respect to the proprietary estoppel claim is what representations were made to Reuben by Aby and there is no pleading that Rosy herself made any representations regarding any transfer of the Metro Hardware business.

[12] Ruling: Rosy Moses’s testamentary intention is not relevant to what representations Aby Moses may have made to Reuben, or whether Reuben reasonably relied on those representations. Refusal upheld.

R. 2: To request the will drafting file from the lawyer who prepared the 2019 wills for Aby Moses.

R. 3: To produce the notes of any information or wishes that Aby expressed to the lawyer as to what he wanted to happen with Metro and with the property at Martin Ross.

[13] The plaintiffs submit that they have pleaded in paras. 46 and 47 of the statement of claim that Rosy and Rachel “put tremendous pressure on Aby to stop him from transferring Metro and his 50% interest in the property on Martin Ross to Reuben” and “exercised undue influence to stop Aby” from leaving his interests in the two corporations to Reuben in his will. The issue is whether the file of the lawyer who prepared the will might reflect pressure from Rosy and Rachel with respect to the contents of the 2019 will.

[14] The defendants submit that the estate lawyer’s file is protected by lawyer-client privilege. The plaintiffs rely on an exception to solicitor-client privilege in relation to the intentions of a testator when the intentions of the deceased person are in question: See: Geffen v. Goodman Estate, [1991] 2 SCR 353.

[15] Ruling: The information from the file of the lawyer who drafted the 2019 will is sought, not for the purpose of challenging that will, but rather, because it could prove or disprove Reuben Moses’s assertion that Rosy and Rachel put pressure on Aby Moses not to transfer his interests in the corporate defendants to Reuben. However, the communications from Aby to the lawyer who drafted the 2019 will are protected by lawyer-client privilege that survives Aby Moses’s death. Because this current proceeding is not an application to challenge that will, which in any event has already been determined to be valid, any possible exception contemplated by Geffen v. Goodman Estate, supra does not apply. Refusals upheld.

R. 4: To ask Cole & Partners (accountants consulted by the Moses family in 2007) for a copy of their file.

[16] A letter from accountant Stephen Cole to “The Moses Family” dated August 9, 2007, reflects that he met with the entire family and that their objective was “to make a plan that is acceptable to the whole family for the division of the business as well as the estate of the last survivor of Aby and Rosy.” It also refers to Reuben’s “sweat equity” in the business. The plaintiffs submit that this accountant’s file, which would plausibly include notes from his meeting with the Moses family, is relevant to the issue of Aby’s intention with respect to the business assets and whether he was being pressured to do something different with his assets than what he promised Reuben.

[17] The defendants do not dispute the relevance of Mr. Cole’s file; in fact, they attempted to obtain it. In her responding affidavit, Karen Fox, a law clerk at Minden Gross, states that they attempted to contact Mr. Cole to see whether any file exists. The firm found out that Cole & Partners has not existed since June 15, 2010, and that Mr. Cole was with another accounting firm. Ms. Francis tried to contact Mr. Cole and he never responded.

[18] The defendants submit that the plaintiff Reuben Moses could request a copy of Mr. Cole’s file. However, the plaintiffs submit that it was Aby and Rosy who were seeking the advice, so Rosy, in her own capacity and on behalf of Aby’s estate, are in the better position to obtain the file.

[19] Ruling: The defendants shall make one further attempt to contact Mr. Cole to request his file with respect to the 2007 meeting. If Mr. Cole does not respond, Rosy Moses shall give the plaintiffs her signed authorization to obtain the file, along with confirmation of her lawyers’ attempts to obtain it.

R. 5: How did it come to be that Reuben was no longer going to be a beneficiary of any of the residue of either estate?

R. 6: There’s a change between what the intentions were in 1996 and then what they were in 2019. So why the change?

[20] The plaintiffs submit that the allegations of “undue pressure” applied by Rosy and Rachel on Aby Moses makes these questions relevant. The defendants submit that they refused to answer these questions on the basis that “the events didn’t come to pass so they are irrelevant and we’ve already had a lawsuit over the 2019 wills”, but without prejudice to this position, they gave the following answers:

R. 5: The will represents Aby’s intentions at the time of the will. Also, in response to the question when asked at the examination, counsel disputed the use of the term “residue” and stated that the correct term would be “contingent beneficiary.”

R. 6: There was no change of intention. Both wills left everything to the surviving spouse. The change with respect to the contingent bequests in the event there was no surviving spouse was based on the concept that Reuben would receive Metro’s shares and Rachel would receive the other assets.

[21] Plaintiffs’ counsel submits that the answers given are not responsive to the questions.

[22] Ruling re: R. 5: The claim against Aby Moses’s estate is in respect of Aby’s alleged representations to Reuben with respect to transferring Metro Hardware’s business and premises to him; it is not a challenge to Aby Moses’s 2019 will or to Rosy Moses’s will. The question is therefore irrelevant. Refusal upheld.

Ruling re: R. 6: The question has been answered by the “without prejudice” answer provided. No further response is required.

R. 7 (May 5, 2022 transcript Q. 47): So, there hadn’t been any kind of blow-up in the family relationship? [i.e. at the time that the “Glenholme” property was purchased in 2015 and put in Rachel’s name]

R. 21 (May 5, 2022 transcript Q. 48): You’ll agree that there had been no blow-up in the family relationship, Rosy? [Counsel agree that the word “no” was inadvertently omitted from the transcript.]

[23] Ruling: These two questions were followed by defendants’ counsel asking plaintiffs’ counsel to define the term “blow-up”, and referring to “Reuben storming out of meetings in 2008 or 2009” and “the particular blow-up when Jake [Rachel’s husband Jake Benbihy] was fired”. Plaintiffs’ counsel then continued with his examination without pursuing the issue of whether there had been a blow-up in the family relationship when the Glenholme property was purchased in 2015, or with distinguishing between a “blow-up” and the tension that Rosy referred to in her answer to Q. 41. My ruling is that there was no refusal to answer the questions.

R. 22: At any time in your discussions with David [David Elias, Rosy’s brother] and Sharon [his wife], isn’t it true that you told them you can’t handle Rachel and you didn’t want to deal with her outbursts?

[24] The evidence on this motion includes an affidavit sworn by David Elias in the estate proceeding in which he says that Aby told him that “he would often give in to Rachel and Rosy’s demands to avoid conflict with them.” Plaintiff’s counsel submits that the relevance of the question is that if Rosy were to acknowledge that she “can’t handle Rachel”, then it would lend credence to Reuben’s contention that Aby could also not handle Rachel. The question would be a valid question at trial, so it should be answered at examinations for discovery.

[25] Defendants’ counsel submits that absent any context, the question is not proper.

[26] Ruling: Much of the case centres on family dynamics, and the plaintiffs plead in paragraph 46 of the statement of claim that “Aby would often cry to Reuben that his wife and daughter were simply too strong for him . . .”. I accept that the question would be relevant at trial and it is therefore also relevant on oral discovery. The question shall be answered.

Rs. 8-20: Re: assets that Rachel is alleged to have received from Aby and Rosy

[27] As evidence that the Moses family at one point recognized Aby’s intention to recognize Reuben’s contribution to the business of Metro Hardware, plaintiffs’ counsel relies on the letter dated August 9, 2007 from accountant Stephen Cole, reviewed in relation to R. 4 above. Mr. Cole states in this letter that two of the “guiding principles” to be considered were to “recognize that each of Rachel and Reuben have an equal interest in all the family assets, subject only to Reuben’s “sweat equity” in the business”, and to quantify “the equity interest he [Reuben] has earned in the business for his loyalty and devotion to date and going forward.”

[28] Plaintiffs’ counsel also relies on a memo dated 11/5/2015 (information in the memo indicates that the date is November 5, 2015) from another accountant, Eva Srulovicz-Kovac, to Aby Moses “Re: Mr. Aby Moses Estate planning”, in which she indicates that he [Aby] asked her to review “the tax reorganization done in 2009.” This memo refers to the incorporation of Metro Hardware and Maintenance Inc. on December 23, 2008. It then describes various transactions relating to Metro Hardware’s share structure including “4. On January 1, 2009, Aby gifted 60 common shares to his son Reuben and 40 common shares to his daughter Rachel” [which Reuben says he was not aware of], followed by this passage:

“It is my understanding that while Aby would like to treat his children equally, he now believes that because his son Reuben runs Metro and is responsible for its recent success, all the future growth should accrue to Reuben, thus reflecting his efforts. Rachel is not active in Metro, yet under the current structure she shares in that growth through her 40% ownership. I agree that this would be an acceptable arrangement if Metro were a passive investment company that required very little management. However, Metro is an active business, and sooner or later Reuben will not have the motivation to work hard if 40% of his efforts will go to his sister. The same way, as Rachel is not sharing her professional income with Reuben, he does not want or will resent one day to share fruits of his efforts with her.

I have prepared some calculations based on estimated fair market value of assets provided by you that show that despite leaving a major asset of the estate to Reuben (including the frozen value of Metro and the shareholder load in Metro), there are sufficient assets that could be used to equalize Rachel. . . .”

[29] Plaintiffs’ counsel submits that Stephen Cole’s letter and Eva Srulovicz-Kovac’s memo support Reuben Moses’s claim based on proprietary estoppel because they are consistent with his contention that his father Aby Moses made representations or assurances to him based on which he expected to enjoy some right or benefit over Metro Hardware, and that he reasonably relied on those representations or assurances. Specifically, Mr. Cole’s letter reflects an apparent acknowledgement of Reuben’s sweat equity in the business that needed to be quantified, and Ms. Srulovicz-Kovac’s memo reflects Aby’s view that “all the future growth [in Metro Hardware] should accrue to Reuben, thus reflecting his efforts.”

[30] Rs. 8-20 all relate to funds or property that may have been given to Rachel Moses by her parents Aby Moses and Rosy Moses. The plaintiffs submit that transfers of assets or funds from Aby and/or Rosy to Rachel, to compensate for what Reuben was supposed to receive in relation to Metro Hardware, would support Reuben’s contention that Aby had promised him a share of the Metro Hardware business. Relevance of answers to the questions turns on whether the information sought about transfers of property to Rachel would make it more or less probable that Aby had promised business assets to Reuben and that it was reasonable for Reuben to rely on those promises. Contrary to the defendants’ submissions, relevance of this information in relation to Rachel does not depend on Rachel being a party.

[31] The defendants submit that the plaintiffs sought the same relief in the estate litigation to challenge Aby Moses’s will, and that challenge was dismissed in its entirety. They submit that questions about what Aby did in relation to Rachel during his lifetime are not relevant to the issues in this action. The theory of the case that Aby was implementing an estate plan is not pleaded.

[32] Although counsel argued the propriety of all of these questions together, they concern different topics that do not enable a single ruling so I will group them as required.

R. 8 (May 5, 2022 transcript Q. 32): What other assets do you acknowledge that Rachel received?

[33] The context for this question is a series of questions relating to Ms. Srulovicz-Kovac’s memo dated 11/5/2015 referred to above. (In the transcript the date is referred to as May 11, 2015 but it includes a reference to the valuation of 218 Ontario as of October 31, 2013 so the correct date is likely November 5, 2015.) At Q. 13 (in the May 5, 2022 transcript), Rosy agreed that Aby’s thought process “was that because Reuben was running Metro and was responsible for its current success, that all the future growth should accrue to Reuben.” At Q. 31, Rosy Moses acknowledged that “Rachel did in fact receive other assets to equalize her benefit.”

Ruling: The disputed question relates to assets that Rachel Moses may have received to equalize her benefit from the family assets in relation to the benefit that the plaintiff Reuben Moses was expecting to receive through acquiring an ownership interest in Metro Hardware. This has nothing to do with Aby Moses’s will or the related estate litigation. The question is relevant to Reuben Moses’s claim for proprietary estoppel based on the representations or assurances that he alleges that Aby Moses made to him, and therefore shall be answered.

[34] Rs. 9-13 relate to the acquisition of the Glenholme property which was also the subject of R. 7 above. Rosy Moses acknowledged (at Qs. 34-37, 44) that in 2015, she, Aby and a relative named Helena purchased the property at 265 Glenholme, she and Aby paid for 50% of the property, she and Aby put their interest in Rachel’s name, and when the property was sold, Rachel received 50% of the proceeds of the sale. Plaintiffs’ counsel suggested to Rosy (Q. 38) that the proceeds that Rachel received totalled approximately $600,000.00; Rosy did not know the amount but “whatever it was, then she got it.”

R. 9: So we’ve looked at the memo from 2015 that said that Aby wanted to benefit his children equally, and yet the two of you put a valuable property in only Rachel’s name. Do you have any explanation for that?

Rs. 10 and 11: To make enquiries to produce the statement of adjustments, the recording letter, the cheques or transfers showing where the funds on closing were paid, and the applicable bank statements, in relation to the sale of 265 Glenholme.

R. 12: Was Rachel given the interest in the Glenholme property because Reuben was supposed to be getting Metro and half of the ownership interest in 218’s property?

R. 13: Why didn’t Glenholme get put in both Rachel’s and Ruben’s name together?

[35] Ruling R. 9: Regardless of whether Rosy knew about the 2015 memo, as indicated above she acknowledged at Qs. 13 and 31 on her examination that Rachel did receive other assets to equalize her benefit in relation to the benefit that Aby contemplated that Reuben would receive as a result of his contribution to the success of Metro. Rachel’s receipt of a benefit from the sale of Glenholme that Reuben did not receive would be consistent with Aby having made representations to Reuben regarding a proprietary interest in Metro Hardware and is therefore relevant to the proprietary estoppel claim. The question shall be answered.

[36] Rulings Rs. 10, 11 and 13: The defendants’ position is that “Glenholme is not relevant to the issues in this action”, there is no pleading with respect to transfers to Rachel to compensate for Reuben being promised a share of Metro Hardware, and without prejudice to the issue of relevance, Glenholme was held in trust by Rachel for Aby and Rosy for tax reasons. Further, the issue was raised in the estate proceeding that was dismissed.

[37] The claim for proprietary estoppel was not asserted in the estate proceeding, which was concerned with the substance of Aby Moses’s 2019 will, so the plaintiffs are not precluded from advancing it in this action. The fact that the Glenholme property was held in trust by Rachel for tax reasons does not negate the effect of the acknowledged transfer of the proceeds of the sale of that property to Rachel. The pleading of the claim for proprietary estoppel based on Reuben’s reasonable reliance on representations or assurances made by Aby to him, combined with Rosy’s acknowledgement of Aby’s intentions outlined in Ms. Srulovicz-Kovac’s 2015 memo, are sufficient to render relevant questions regarding transfers of funds from Aby and/or Rosy to Rachel, including from the sale of the Glenholme property. These questions shall be answered.

[38] Ruling R. 12: Without prejudice to their position that the question is not relevant, the defendants’ response is that it is not true that Rachel was given the interest in the Glenholme property because Reuben was supposed to be getting an interest in the Metro Hardware business and the property owned by 218 Ontario. For the reasons set out above, I accept that the question is relevant. However, as plaintiffs’ counsel now accepts that the question has now been answered, no further answer is required.

[39] Rs. 14-15 relate to the sale of a condominium property at 135 Antibes, Unit 1401. In earlier questions, Rosy denied that Rachel requested the sale of the property and counsel took under advisement whether Rachel received the proceeds of the sale of the property. The two questions in dispute are:

Rs. 14 and 15: Why was Reuben not included in the proceeds of sale of 135 Antibes, Unit 1401, and to produce the statement of adjustments on closing and the cheques or transfers distributing the proceeds.

[40] To complete the context for these questions, plaintiffs’ counsel also asked, and defendants’ counsel took under advisement, whether Rachel received the proceeds of that sale, and why she alone received those proceeds.

[41] Ruling: The defendants’ answer that the property was always in Rosy’s name is non-responsive because the issue is what funds did Rachel receive from her parents that could plausibly have been intended to equalize Aby’s promised transfer of the Metro Hardware business to Reuben. This answer is also non-responsive to why, if a portion of the proceeds of the sale was given to Rachel, a similar portion was not given to Reuben. Based on my rulings on Qs. 9-13 above, Qs. 14 and 15 are relevant and shall be answered.

R. 16: To request confirmation from Rachel as to whether Aby gave her money to buy into the Minden Gross partnership and to find out how much she received.

R. 17: To advise how much cash Rosy and/or Aby gave to Rachel over the years and to make enquiries of Rachel to find out.

R. 18: How much money is she aware of Rachel receiving from Aby over the years.

R. 19: Whether Rachel received a regular weekly or monthly amount from Aby.

R. 20: How much Rachel received in total from Rosy and Aby in cash.

[42] The defendants’ position with respect to these questions is that Reuben’s claims against Rachel in the estate proceeding have been dismissed. Further, Rachel is not a defendant in the action and the relationship and financial dealings between Aby, Rosy and Rachel are not relevant to the issues in the action.

[43] With respect to Q. 18, defendants’ counsel advises, without prejudice to the issue of relevance, that Rachel does not know how much Aby and Rosy gave to her and Reuben. Further, the defendants submit that Reuben has failed or refused to disclose how much he received over the years.

[44] Once again, these disputed questions relate to assets or funds that Rachel Moses may have received to equalize her benefit from the family assets in relation to the benefit that Reuben Moses alleges that he was promised by Aby through a transfer of an ownership interest in Metro Hardware. They are not a challenge to Aby Moses’s will. The transfer of funds to Rachel Moses from her parents would support Reuben Moses’s assertion that Aby and Rosey were equalizing the distribution of family assets between Rachel and himself, as reflected in Mr. Cole’s letter of August 9, 2007 and Ms. Srulovicz-Kovac’s memo of November 5, 2015.

[45] Any such transfer to Rachel would support Reuben’s claim that Aby promised to transfer him an interest in the Metro Hardware business. All of these questions are therefore relevant to the claim as pleaded; specific pleadings of transfers of funds to Rachel are not necessary. Rosy and her counsel obviously have access to Rachel and they can reasonably be expected to make enquiries of her to answer proper oral discovery questions.

[46] Rulings: All of questions 16-20 shall therefore be answered, except that defendants’ counsel has already advised, in answer to Q. 18, that Rachel does not know how much money she and Reuben received from their parents over the years. Also, as Rachel is not a party to the action, this order requires Rosy to answer the questions, including to make enquiries of Rachel, but it does not bind Rachel.

[47] Reuben Moses should note that I am requiring Rosy, either based on her own knowledge or on information obtained from Rachel, to disclose the total funds that Rachel has received from her parents. Although I will not be hearing the motion with respect to Reuben’s undertakings and refusals, I believe that it would be difficult to reach a different conclusion with respect to his obligations.

[48] Plaintiffs’ counsel attempted to argue that some or all of Qs. 8-20 were relevant to their claims for unjust enrichment. These claims, in paras. 60 and 61 of the statement of claim, are based on the work done by Reuben Moses and Laura Harkin for the benefit of Metro Hardware for less than the value of their services. However, there is no pleaded connection between the claims for unjust enrichment and any alleged benefit to Rachel, and even if there were, she is not a defendant so there is no recoverable remedy for any unjust enrichment as against her. I have not considered any claims of unjust enrichment in making my rulings on these questions.

Rs. 23-29

[49] Rs. 23-26 and 29 arise from a document identified in the plaintiffs’ chart as Tab 234 of the defendants’ affidavit of documents. The document consists of an email message dated February 5, 2020 from Rosy Moses to her cousin Hilda Lippner, with which she forwarded an email message from Elena Hoffstein, a lawyer at the Miller Thomson firm who was acting for her in negotiations with Reuben Moses regarding a possible sale of the Metro Hardware business to him. Consistent with counsel’s exchanges in correspondence, at the examination and in their charts filed for this motion, I will refer to the subject document, which includes both emails, as “Tab 234”.

[50] As indicated, the examination for discovery of Rosy Moses was held on April 1 and May 5, 2022. On March 11, 2022, Minden Gross, counsel for the defendant corporations, served plaintiffs’ counsel with the draft affidavit of documents of Rosy Moses, including Tab 234.

[51] On March 31, 2022 at 7:20 p.m., defendants’ counsel Ms. Francis sent the following email message to plaintiffs’ counsel Mr. Sidlofsky:

“In preparing for the examination tomorrow, I discovered that we inadvertently included a solicitor client privileged document in our productions. Production #234. This was an error. I will arrange for Karen [Karen Fox, a law clerk at Minden Gross] to resend you the Affidavit of Documents and Section H with tab 234 deleted.

There are no other changes. We will arrange for Rosy to swear the affidavit with this deletion.

I apologize for the inconvenience.”

[52] On April 1, 2022 at 8:10 a.m., before the start of Rosy Moses’s examination for discovery, Ms. Fox sent an email to Mr. Sidlofsky and to co-defendants’ counsel Mr. Das stating:

“I am attaching a copy of the revised Affidavit of Documents with the removal of Tab 234 (I left in the Tab# to keep the numbering in place). . . .”

[53] On April 1, 2022 at 8:50 a.m. Mr. Sidlofsky responded to Ms. Francis’s March 31, 2022 email with the following email:

“Catherine,

With respect to your email below, your clients’ document #234 is an email between Rosy and an individual who does not appear to be her lawyer, or a lawyer at all. Rosy therefore waived any privilege that may have attached to the email from Elena that she was forwarding .”

[54] Rosy Moses’ examination for discovery proceeded on April 1, 2022 and continued on May 5, 2022. At the examination on May 5, 2022, Mr. Sidlofsky attempted to examine Rosy Moses on the Tab 234 document. The following is a summary of the exchange between counsel:

Q. 219: Mr. Sidlofsky referred to Tab 234 and identified it as an email from Rosy Moses to Hilda Lippner.

Q. 220: Ms. Francis stated that “that’s the one [Tab 234] we included inadvertently and removed, so I object to any questions about it”, and further that “we asked you to remove it on the basis it includes privileged documents . . .”. Mr. Sidlofsky stated that “this document is not privileged” and Ms. Francis reiterated that “I object to any questions about solicitor/client privileged documents that were inadvertently included in the productions.”

Qs. 221-225: Mr. Sidlofsky asked various questions about Rosy Moses’s relationship with Hilda Lippner. He asked why she was writing to her about her dealings with Reuben Moses and her lawyer and she replied “because I needed someone to talk to.”

Qs. 228-229: In response to Rosy Moses’s answer that she “probably” also sent similar information and correspondence to Hilda’s sister Rahaeli, Mr. Sidlofsky requested copies of all emails to family members regarding her dispute with Reuben including correspondence forwarded from her lawyers.

Q. 231-235: Ms. Francis took various questions under advisement.

Qs. 236: Ms. Francis reiterated that the email that Rosy Moses forwarded to Hilda Lippner was removed from her productions because it was privileged and “inadvertently disclosed”.

Q. 239: In objecting to questions, Ms. Francis again stated that the initial production of Tab 234 “is a mistake” and “it was produced by inadvertence” and “I was not going to produce a solicitor/client privileged document.”

[55] Plaintiffs’ counsel, relying on Air Canada v. McDonnell Douglas Corp. at paras 34-35, submits that by forwarding the email from her lawyer Elana Hoffstein to her cousin Hilda Lippner, Rosy Moses waived privilege over it so questions regarding her communications with Ms. Hoffstein regarding the issues in the action brought by Reuben Moses must be answered.

[56] Defendants’ counsel submits that when she informed plaintiffs’ counsel (in her March 31, 2022 email) that Tab 234 was a privileged document that had been produced inadvertently, plaintiffs’ counsel should have proceeded in accordance with the guidelines set out by Belobaba J. in Chan v. Dynasty Executive Suites Ltd., at paras. 74-75 [emphasis added below]:

74 The case on this point is clear. Once a lawyer has been advised that privileged documents were produced inadvertently, the lawyer must promptly return the material uncopied and, if possible, unread. If there is any issue as to whether privilege is properly asserted, the obligation of the receiving counsel is to seal the documents, and any notes made in respect of the documents, and seek further direction from the court: Aviaco International Leasing Inc. v. Boeing Canada Inc., Nova Growth Corp. v. Kepinski at para. 29; Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd. (2001), 2001 ABCA 248, Williams v. Stephenson, 2005 BCSC 1271.

75 In Nova Growth Corp., supra, Justice Farley was unequivocal regarding the responsibility of counsel in this regard, citing with approval, at para. 29, the decision of Justice Nordheimer [as he then was] in Aviaco International Leasing, supra at para. 11:

Once plaintiffs’ counsel realized that the letters had been sent to them by mistake, something that ought to have been obvious to them as soon as they saw the letters, they were under a positive duty to advise both counsel of the mistake. Then they should have returned the letters without keeping any copies of them or, if they reasonably thought there was an issue as to whether they were entitled to retain the letters, then they ought to have taken immediate steps to seek a ruling from the court on that issue.

[57] Paragraph 74 of Chan v. Dynasty Executive Suites, supra was recently cited with approval by Braid J. in Dente et al. v. Delta Plus Group et al., 2023 ONSC 3376 at para. 38.

R. 23: To ask Ms. Hoffstein, then of Fasken, now of Miller Thomson, why Rachel said she had a 50% shareholding in Metro and whether she justified that in any way to Ms. Hoffstein.

[58] Ruling: Subsequent to asking this question (Q. 239 in the transcript), plaintiffs’ counsel also requested an undertaking to ask Rachel Moses (at Q. 250) why she thought that she was a 50% shareholder in Metro. Separate from any privilege issues arising from the plaintiffs’ request for information from a lawyer consulted by the defendant Rosy Moses, defendants’ counsel has responded that “Rachel did not say she had a 50% shareholding in Metro.” This answer is sufficient to answer the question at R. 23.

R. 24: To answer questions related to Tab 234 of the defendants’ affidavit of documents.

R. 25: To produce the recording that Rosy sent to Hilda Lippner of her conversation with her lawyer.

R. 26: To ask Rachel Moses what she discussed with Kelly Charlebois (a lawyer referred to in the Elena Hoffstein email forming part of Tab 234) concerning the minute books of Metro and any of the matters in dispute involving Reuben Moses.

[59] Ruling: Approximately three weeks after first serving their affidavit of documents and immediately before the first day of Rosy Moses’s examination for discovery, counsel for the corporate defendants alerted plaintiffs’ counsel to the fact that Tab 234, over which the defendants claimed lawyer-client privilege, had inadvertently been disclosed. The issue of privilege having been raised by the defendants before the examination, the correct way for plaintiffs’ counsel to proceed, based on Chan v. Dynasty Executive Suites, supra, would have been to inform defendants’ counsel that he was challenging the claim for privilege and if necessary, to bring the privilege issue before the court before attempting to ask questions about it.

[60] Even if plaintiffs’ counsel disagreed with the legitimacy of the claim of privilege, it was not open to him to ignore the fact that the defendants had asserted it and to then attempt to examine on it. As stated by Nordheimer J. in Aviaco International Leasing, supra, “if they reasonably thought there was an issue as to whether they were entitled to retain the letters [in this case emails], then they ought to have taken immediate steps to seek a ruling from the court on that issue.”

[61] I accept the submission of defendants’ counsel that it was improper for the plaintiffs to take advantage of the disclosure of Tab 234 where counsel said that they disclosed it in error. Owing to the plaintiffs’ failure to proceed as mandated in Chan v. Dynasty Executive Suites, supra, the defendants’ refusal to answer questions relating to Tab 234 is hereby upheld.

R. 29: To produce copies of all emails Rosy sent to her cousins or other family members regarding her dispute with Reuben including all correspondence that she forwarded to them from her lawyers.

[62] Ruling: Flowing from my ruling on questions relating to the document referred to as Tab 234 of the plaintiffs’ affidavit of documents, the defendant Rosy Moses shall disclose any emails that she sent to cousins or other family members regarding her dispute with Reuben to which she attached correspondence from any lawyer who provided her with advice regarding that dispute. If she claims privilege with respect to any such correspondence, she shall explain the basis for the claim of privilege so that the plaintiffs may seek an adjudication of the claim of privilege if they wish. The refusal to request correspondence to family members to which correspondence from lawyers was not attached is upheld on the basis that it is a fishing expedition for documents the relevance of which has not been established.

R. 27: To produce the memo to Rachel Moses referred to in an email from Samantha Prasad to Rosy Moses dated July 7, 2020.

R. 28: To produce the document referred to as “Rachel’s handwritten instructions on MG invoice” referred to in another email from Samantha Prasad to Rosy Moses dated July 7, 2020.

[63] The two documents requested are contained in two separate emails dated July 7, 2020 from Samantha Prasad who has a Minden Gross email address and who is identified in the transcript as being “from Minden Gross”. The emails consist of lists of documents of two pages and four pages.

[64] Ruling: By including these two lists of documents sent by Minden Gross to Rosy Moses in the defendants’ productions, many of which specifically refer to Metro Hardware and Maintenance, defendants’ counsel is acknowledging their relevance, so I cannot accept that the individual documents contained in the lists are not relevant.

[65] In their responding chart, and in argument, defendant’s counsel asserts privilege over the two documents in question. However, the corporate defendants’ position is that Reuben Moses is a shareholder in Metro Hardware and in that capacity he would be entitled to documents from counsel relating to the business of Metro Hardware, so he cannot be denied access to those documents by lawyer-client privilege. There is no evidence that the documents were created for the purpose of the litigation between Reuben Moses and Metro Hardware so they are not protected by litigation privilege. Accordingly, these documents shall be produced.

Costs

[66] On reviewing my rulings on the motion, the plaintiffs were successful on 15 of the 30 disputed questions, the defendants were successful on 18 of the questions, including the questions on which I accepted that their without prejudice answers were sufficient, and my ruling on R. 29 was equally favourable. The plaintiffs’ slightly greater degree of success is offset by the fact that they were unsuccessful on the questions relating to the Tab 234 document which required more legal research and argument than the other questions. I conclude that the parties’ relative degrees of success on the motion are sufficiently similar that there shall be no costs payable on the motion. It is therefore unnecessary to consider the amounts claimed in the parties’ costs outlines.

ASSOCIATE JUSTICE GRAHAM Date: August 31, 2023