Court File and Parties
Court File No.: CV-21-00671885
Motion Heard: September 16, 2025
Superior Court of Justice - Ontario
Re: Wendy Sokoloff Professional Corporation and Wendy H. Sokoloff Professional Corporation c.o.b. as Sokoloff Lawyers, Plaintiffs
And: Savannah Chorney, Chorney Legal Professional Corporation c.o.b. Chorney Injury Lawyers, Nicole Chorney, Melissa MacLeod (a.k.a. Melissa Sidhu), Jhade-Ann Hue, Susan Murray and Harbhajan Gill (a.k.a. Malka Gill), Defendants
And Between: Savannah Chorney, Chorney Legal Professional Corporation c.o.b. Chorney Injury Lawyers, Plaintiffs by Counterclaim
And: Wendy Sokoloff Professional Corporation and Wendy H. Sokoloff Professional Corporation c.o.b. as Sokoloff Lawyers, Defendants to the Counterclaim
Before: Associate Justice L. La Horey
Counsel:
- Scott Hutchison, Lawyer for the Moving Parties Plaintiffs/Defendants by Counterclaim
- John J. Adair, Lawyer for the Responding Parties Defendants/Plaintiffs by Counterclaim
Heard: September 16, 2025 by videoconference
Reasons for Decision
Overview
[1] The plaintiffs, the law firm Sokoloff Lawyers, bring this motion for further and better affidavits of documents from two of the defendants, Savannah Chorney ("Savannah") and Nicole Chorney ("Nicole"). The plaintiffs also seek an order that Savannah and Nicole attend for further examination for discovery. The parties are agreed that if the plaintiffs are successful on the motion for further and better affidavits of documents, then the plaintiffs will be entitled to further oral discovery of Savannah and Nicole.
[2] The defendants worked at the Brampton office of Sokoloff Lawyers. Savannah, a lawyer called to the bar in 2009, was the lead lawyer at that office. Nicole, Savannah's spouse, was the office manager. During the Thanksgiving weekend of 2021, the defendants took steps to take over the Brampton office of Sokoloff Lawyers. The plaintiffs bring this action claiming, among other things, breach of contract, breach of fiduciary duty and the duty of good faith. The facts are set out in the decision of Justice Chalmers granting an interlocutory injunction in favour of the plaintiffs (2021 ONSC 8497). That injunction was later varied by Justice Dow (2023 ONSC 362).
[3] Savannah and Nicole refused to answer some questions asked at their respective examinations for discovery on the basis of spousal privilege. The sole issue on this motion is whether Savannah and Nicole are able to assert spousal privilege over their communications and the scope of such privilege.
[4] For the reasons that follow, I conclude that Savannah and Nicole are required to disclose their relevant communications to their spouse, but may claim spousal privilege over the communications received from their spouse.
Analysis
[5] The Supreme Court of Canada, in R. v. Couture, reviewed the law respecting spousal testimony. At common law, in civil cases, spouses were incompetent to testify. This common law rule has been abolished in civil cases. A spousal privilege in respect of marital communications has been created by statute.
[6] The rules of spousal incompetency have been justified on two policy grounds. The first justification is that it "promotes conjugal confidences and protects marital harmony." The second is the "natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the other's condemnation, and to compelling the culprit to the humiliation of being condemned by the words of his intimate life partner".
[7] The Ontario Evidence Act provides in relevant part as follows:
Evidence of the Parties
8 (1) The parties to an action and the persons on whose behalf it is brought, instituted, opposed or defended are, except as hereinafter otherwise provided, competent and compellable to give evidence on behalf of themselves or of any of the parties, and the spouses of such parties and persons are, except as hereinafter otherwise provided, competent and compellable to give evidence on behalf of any of the parties.
Communications made during marriage
11 A person is not compellable to disclose any communication made to the person by his or her spouse during the marriage.
[8] In Couture, the Supreme Court of Canada was concerned with the provisions of the Canada Evidence Act. The parties are agreed, for the purposes of this motion, that section 11 of the Ontario Evidence Act is functionally equivalent to subsection 4(3) of the Canada Evidence Act. This provision is explained at paragraph 41 of Couture which provides in part as follows:
Section 4(3) creates a spousal privilege in respect of marital communications. The question of privilege was not really an issue at common law because spouses, with few exceptions, were not competent to testify. The concept of spousal privilege was therefore created by statute after legislation in the 19th century made spouses competent witnesses. The privilege is testimonial in nature, giving a right to withhold evidence but the communications themselves are not privileged. The privilege belongs to the spouse receiving the communication and can be waived by him or her. See Lloyd v. The Queen, [1981] 2 S.C.R. 645, at pp. 654-55.
[9] In Ontario, section 8 of the Evidence Act eliminates the common law rule that spouses are not competent and compellable. Section 11 provides a limited spousal privilege in respect of marital communications.
[10] I agree with the plaintiffs' position that on a plain reading of section 11, the privilege is given only to the recipient of the communication. Section 11 provides:
11 A person is not compellable to disclose any communication made to the person by his or her spouse during the marriage. [my emphasis]
[11] The statute does not confer a privilege over communications made by a person to her spouse. Section 11 does not provide that a person is not compellable to disclose any communication "with" their spouse or communications "between spouses".
[12] A person may decline to disclose a communication from her spouse, but section 11 does not allow her to refuse to disclose her communications to her spouse.
[13] Therefore, Savannah is required to disclose her relevant communications to Nicole, but may claim privilege over the communications she received from Nicole. Likewise, Nicole may claim privilege only over her relevant communications from Savannah.
[14] The result in this case, where the spouses are co-defendants, is that the plaintiffs may end up discovering the whole of the conversation between the spouses. But this outcome does not steer the interpretation in a different direction, because as the court held in Couture, the communications themselves, i.e. their content, are not privileged.
[15] This interpretation is supported by the very brief decision of Master Cartwright in 1905 in Ontario regarding a predecessor provision to section 11 of the Evidence Act.
[16] The defendants' position is that the communications between the spouses are privileged regardless of whether the spouse is the sender or recipient. They argue that the distinction between sender and recipient in section 11 must be understood in the context of who owns the privilege and who is entitled to waive the privilege. The privilege is "held" or "owned" only by the recipient spouse, and can be waived unilaterally by that spouse.
[17] I do not accept this interpretation.
[18] The defendants rely on the decision of Justice K. L. Campbell in R v Walsh. In that case, the court was ruling on whether the Crown could introduce into evidence text messages from the accused to his wife. The court held that such modern forms of communication as text messages and emails "exchanged between married spouses, have also been consistently held to be admissible in evidence, provided only that they were independently and lawfully obtained by the police, through valid judicial authorization or otherwise."
[19] The defendants argue that it would not have been necessary for the court to consider whether the communications could be "independently" obtained if the communications could be compelled from the "sending" spouse.
[20] In my view, the case does not assist the defendants. The inference that the defendants take from the case is not part of the ratio decidendi of the case and the criminal law context (where the accused is not compellable) is important. The court was not addressing the statutory interpretation question at issue in this case.
[21] The defendants also argue that the outcome in this case, on the interpretation that I have accepted, is contrary to the underlying policy of protecting marital confidences and therefore their interpretation is the correct one. In my view, their objection to the outcome is an argument for the amendment of the section. The legislation first makes spouses competent and compellable. It later sets out a limited spousal privilege. The legislature has chosen to abolish a general rule about spousal compellability and substitute in its place a limited privilege. The defendants' interpretation ignores the clear language of section 11 to create a different, expanded privilege.
[22] Both sides rely on passages from Sopinka, Lederman & Bryant: The Law of Evidence in Canada. In their section on spousal communications, under the heading "Who May Exercise the Privilege" the authors state:
¶14.288
For some inexplicable reason, the privilege rests only with the spouse who has received the communication, and not with the spouse who has made it. Lord Reid in Rumping v. Director of Public Prosecutions was at a loss to elucidate any justification for giving the privilege to only the recipient spouse.
It is a mystery to me why it was decided to give this privilege to the spouse who is a witness: it means that if the spouse wishes to protect the other he or she will disclose what helps the other spouse but use this privilege to conceal communications if they would be injurious, but on the other hand a spouse who has become unfriendly to the other spouse will use this privilege to disclose communications if they are injurious to the other spouse but conceal them if they are helpful.
¶14.289
A literal interpretation of the statutory privilege, however, may not be appropriate. In Moore v. Whyte (No. 2), Street C.J. in reviewing legislation in New South Wales, which conferred a privilege upon a spouse in respect of the communication to that spouse, stated:
The word "communication" is a comprehensive word of very wide meaning and … it is clear that the intention of the Legislature was to place the seal of the law upon all communications of any kind passing between them during marriage. To purport to observe the strict meaning of the words used, while so interpreting them as completely to nullify this intention is not permissible in our opinion.
If privilege is designed to encourage spouses to confide in one another, then surely waiver of the privilege should not belong only to the recipient of the communication. The statutes do not expressly protect the person who makes the communication and it is clear that an amendment is desirable to make only the communicating spouse the holder of the privilege. [Citations omitted.]
[23] In the footnote to the quoted Australian decision the authors note that: "New South Wales legislation now specifically extends the privilege to communication 'made between' spouses."
[24] In my view, these passages support the interpretation that only the communications to the recipient spouse are privileged. Any expansion of the privilege beyond the clear words of the statute should be left to the legislature to consider.
[25] The defendants argue that if the plaintiffs' interpretation is accepted, the spousal privilege in the statute could be eviscerated by bringing motions under rules 30.10 and 31.10 of the Rules of Civil Procedure to obtain the evidence of the communicating non-party spouse. However, these rules require that the court grant leave and the court, in exercising its discretion, may consider whether the motion is being brought for an improper purpose. Similarly, the issuance of a summons to witness under rule 39.03 is subject to judicial oversight.
[26] There is no suggestion that the plaintiffs are acting in bad faith on this motion or going on a fishing expedition. To the contrary, there is a judicial determination by Justice Chalmers that the plaintiffs have established a strong prima facie case that the defendants breached their good faith and fiduciary duties to the plaintiffs on the injunction motion.
[27] The plaintiffs also argued as a matter of statutory interpretation of the Evidence Act, that spousal privilege does not apply to co-defendants. Because of the conclusion that I come to, I do not need to decide whether the plaintiffs are correct in this.
[28] The plaintiffs submitted, in the alternative, that if spousal privilege applies, Savannah and Nicole have waived any entitlement to rely on spousal privilege by virtue of their filing a joint defence in which they have denied having conspired or committed any legal wrong. I do not need to decide this issue to decide the motion. It is not necessary given the conclusion I have reached and the issue of waiver of privilege was not fully briefed by the parties.
Disposition and Costs
[29] Each of Savannah and Nicole shall deliver a supplementary affidavit of documents listing the affiant's relevant communications (including text messages and emails) sent to her spouse. They may redact text messages and emails received from their spouse. Redactions should be indicated on the document and the basis for the redaction identified. The supplementary affidavit of documents should include a particularized Schedule B.
[30] The parties agreed that the successful party would be entitled to costs in the sum of $10,000. As the plaintiffs were the successful parties, they are entitled to costs. It was also agreed that, if successful, the plaintiffs would only be seeking costs from Savannah and Nicole given the nature of the relief sought. Accordingly, Savannah and Nicole shall pay to the plaintiffs the costs of the motion fixed in the sum of $10,000 (all-inclusive) payable within 30 days.
L. La Horey, A.J.
Date: October 2, 2025