



COURT OF APPEAL FOR ONTARIO

CITATION: Kazen v. Whitten & Lublin
    Professional Corporation, 2020 ONCA 325

DATE: 20200526

DOCKET: C67805

Gillese, Brown and Jamal JJ.A.

BETWEEN

Samuel Kazen

Plaintiff (Appellant)

and

Whitten
    & Lublin Professional Corporation, Daniel Asher Lublin, David Alan Whitten,
    Marc Warren Kitay, Stephen Clifford Wolpert
and
    Gauri Jalota

Defendants (Respondents)

R. Lee Akazaki, for the appellant

Gavin Tighe and Lauren Rakowski, for
    the respondents Whitten & Lublin Professional Corporation, Daniel Asher
    Lublin, David Alan Whitten, Marc Warren Kitay and Stephen Clifford Wolpert

Heard and released orally: May
    25, 2020 by Videoconference

On appeal from the order of Justice Paul
    B. Schabas of the Superior Court of Justice, dated November 15, 2019.

REASONS FOR DECISION


[1]

The appellant is a lawyer. He sued the respondents,
    a law firm and individuals connected to it (the Action). The cause of action
    is an alleged breach of solicitor-client privilege arising from the respondent
    law firm having provided the appellant with legal advice several years earlier.
    The alleged breach is said to have occurred on a motion in an unrelated lawsuit
    (the earlier proceeding).

[2]

The respondents moved to have the Action struck.
    By order dated November 15, 2019, the motion judge struck the Action on the
    basis of issue estoppel. The appellant appeals against the order.

[3]

For the reasons that follow, the appeal is
    dismissed.

[4]

In the Action, the appellant raised
    substantially the same alleged breach of solicitor-client privilege as had been
    dealt with in the earlier proceeding. In a motion on the earlier proceeding,
    the Master ruled against the appellant on the matter of solicitor-client
    privilege. The Master found, among other things, that if any privilege had
    existed, it had been expressly waived.

[5]

As the motion judge set out, relying on
Angle
    v. Minister of National Revenue
, [1975] 2 S.C.R. 248, the test for issue
    estoppel consists of three parts:

i. the same question has been decided;

ii. the judicial decision which is said to create the estoppel was
    final; and

iii. the parties to the judicial decision or their privies were the
    same persons as the parties to the proceedings in which the estoppel is raised
    [or] their privies.

[6]

We begin by noting that there is no real
    question that the second and third parts of the test are met. The appellant
    appealed the Masters decision but later withdrew the appeal. Accordingly, the Masters
    decision on solicitor-client privilege was a final decision. And, on the Motion
    before the Master relating to the issue of solicitor-client privilege, the
    parties or their privies were the appellant and the respondents.

[7]

The appellants primary contention on this
    appeal focusses on the first part of the test for issue estoppel. He argues that
    the Master did not decide the question of solicitor-client privilege. In making
    this argument, he relies on a narrow reading of one sentence in para. 23 of the
    Masters decision, where the Master refers to a legal consultation. We do not
    accept this argument. A fair and full reading of the Masters reasons as a
    whole show that the issue of solicitor-client privilege was squarely before the
    Master and that she found that the appellant had expressly waived that
    privilege. Thus, the same question was decided by the Master as that which the
    appellant raised in the Action.

[8]

Accordingly, the motion judge did not err in finding
    that the Action was barred by issue estoppel or in striking the statement of
    claim without leave to amend.

[9]

The appeal is dismissed with costs to the
    respondents fixed in the amount of $8,000, inclusive of disbursements and
    applicable taxes.

E.E.
    Gillese J.A.

David
    Brown J.A.

M.
    Jamal J.A.


