



COURT OF APPEAL FOR ONTARIO

CITATION: Sobeski v. Mamo, 2012 ONCA 560

DATE: 20120828

DOCKET: C53659

Winkler C.J.O., Armstrong and LaForme JJ.A.

BETWEEN

Raymond Sobeski

Plaintiff (Respondent)

and

Alfred
    Mamo, Bell Globemedia Publishing Inc.,

Peter
    Cheny and Edward Greenspon

Defendants (Appellant, Alfred Mamo)

J. Brian Casey and Paul Hughes, for the appellant,
    Alfred Mamo

Mark M. Orkin, Q.C. and Robert G. Schipper, for the
    respondent Nynna Ionson

Brian G. Shiller, for the respondent Raymond Sobeski

Heard: March 8, 2012

On appeal from the order of Justice Paul Perell of the
    Superior Court of Justice, dated April 6, 2011, with reasons reported at 2011
    ONSC 2153, 105 O.R. (3d) 532, and supplementary reasons reported at 2011 ONSC
    4814, [2011] O.J. No. 3684.

Armstrong
    J.A.:

INTRODUCTION

[1]

Nynna Sobeski, also known as Nynna Ionson, retained Alfred Mamo, a
    family law lawyer, to act for her in respect of matrimonial proceedings with
    her husband, Raymond Sobeski.  Ms. Sobeski provided numerous documents to her
    lawyer in connection with the proceedings.  The matrimonial proceedings were
    settled prior to trial.  Mr. Mamo now seeks to use Ms. Sobeskis documents,
    which he still has in his possession, in defence of this defamation action
    brought against him by Mr. Sobeski.

[2]

Mr. Mamo moved for an order pursuant to rule 30.1.01(8) of the
Rules
    of Civil Procedure
that the deemed undertaking does not apply in respect
    of Ms. Sobeskis documents.  Perell J. of the Superior Court of Justice
    dismissed the motion and ordered that Mr. Mamo return all of Ms. Sobeskis
    documents to her.  Mr. Mamo now appeals to this court.  Mr. Sobeski did not
    take a position on the motion or in this appeal.

BACKGROUND

[3]

Nynna Sobeski and Raymond Sobeski began a romantic conjugal relationship
    in December 1994.  They were married in December 1998.  After the marriage, the
    relationship continued as before and they continued to live apart.

[4]

On January 4, 2004, Mr. Sobeski obtained a divorce judgment, which was
    not defended by Ms. Sobeski.  Ms. Sobeski subsequently alleged that she was
    duped into not defending the divorce petition and that Mr. Sobeski had
    concealed from her the fact that he had won a $30 million lottery prize.

[5]

Ms. Sobeski retained Mr. Mamo to set aside the divorce decree and to
    pursue a claim for a share of the lottery prize as a part of the equalization
    of the matrimonial property.

[6]

Mr. Sobeskis defence was that there was no genuine marital
    relationship.  In response to his defence, Ms. Sobeski provided her lawyer with
    a multitude of documents, which included correspondence with her husband.

[7]

The case attracted a certain amount of media interest.  In December
    2005, Mr. Mamo was interviewed by a
Globe and Mail
reporter.  In a
Globe
    and Mail
story, which followed, Mr. Mamo is reported to have said:

There are two versions of what happened here.  By Wednesday,
    people will understand that Nynnas is the accurate one.  And theyll see that
    his is a perjured account.

[8]

On March 13, 2006, Mr. Sobeski commenced this action against Mr. Mamo, the
    publisher of the
Globe and Mail
, the
Globe and Mail
reporter,
    and the editor-in-chief of the
Globe and Mail
for defamation.  In
    defence, Mr. Mamo pleaded fair comment and justification.

[9]

From May 2006 to December 2008, the defamation action was dormant while
    the matrimonial case moved ahead.  The matrimonial case settled before trial in
    January 2009.

[10]

Subsequent
    to the settlement, there is some evidence that Mr. and Ms. Sobeski resumed
    their personal relationship.  Ms. Sobeski then moved to have Mr. Mamos legal
    accounts assessed.  Also, Mr. Sobeski began to move his defamation action
    forward.

[11]

In
    his defence, Mr. Mamo sought to use many of the documents that Ms. Sobeski had
    given to him during the matrimonial litigation.  Counsel for Mr. Mamo requested,
    through counsel for Ms. Sobeski, a waiver of solicitor/client privilege and the
    deemed undertaking in respect of the aforesaid documents.  The solicitor for
    Ms. Sobeski was instructed to refuse the request.

[12]

Counsel
    for Mr. Mamo then moved in motions court for relief from the deemed undertaking
    rule.  He did not seek waiver of solicitor/client privilege because all of the
    documents in issue had been disclosed to Mr. Sobeski in the matrimonial
    proceedings, and therefore privilege did not apply.

[13]

The
    documents in issue on the motion are described as follows:


·

Affidavit of Divorce

·

Amended Answer

·

Affidavit of Nynna Sobeski and two exhibit books

·

10 document briefs

·

119 CDs of recorded conversations

·

Applicants Records Vol. I and II

·

Respondents Record

·

Transcript of Ms. Ionsons questioning

·

Request to Admit, 2 volumes

·

Offers to Settle

·

Orders  Motion to Set Aside Divorce

·

Medical Records

·

Transcripts of Mr. Sobeskis questioning, 3 volumes

·

Additional CDs

·

Exhibits to Mr. Sobeskis questioning

·

Exhibits to Ms. Sobeskis questioning


[14]

The
    motion judge concluded that some of the documents in issue were not covered by
    the deemed undertaking.  These included documents that had been filed in court
    and are exempt under rule 30.1.01(5) as well as documents used for the purpose
    of impeaching a witness under rule 30.1.01(6).  The motion judge also noted
    that the deemed undertaking only applied to documents obtained under rules 30,
    31, 32, 33 and 35 and that some of the documents were obtained outside of those
    rules.  The motion judge did not provide details of what documents fell outside
    that category.  As will be seen from my analysis below, I am of the view that
    none of the documents in issue were obtained by Mr. Mamo under rules 30, 31,
    32, 33 and 35.

[15]

The
    motion judge observed that although the deemed undertaking was being asserted
    in an unusual way, some of the documents in issue were subject to the rule.  He
    concluded at para. 33 of his reasons:

The normal situation envisioned by the rule is that the
    lawyers undertaking would be extended to documents and information disclosed
    by the opposing party, namely, Mr. Sobeski.  In this case, the deemed
    undertaking is being asserted for the benefit of Mr. Mamos own client. 
    Despite the oddity, in my opinion, the deemed undertaking applies because it is
    being asserted by a person for whom the rule was designed to offer protection.

[16]

Having
    determined that the deemed undertaking rule applied to some of the documents in
    issue, the motion judge turned his mind to whether Mr. Mamo should be relieved
    from the undertaking.  He cited the judgment of Binnie J. in
Juman v.
    Doucette
, 2008 SCC 8, [2008] 1 S.C.R. 157 to the effect that relief from
    the implied undertaking will only be granted in exceptional circumstances.
[1]
The onus is on the applicant to demonstrate to the court ... the existence of
    a public interest of greater weight than the values the implied undertaking is
    designed to protect, namely privacy and the efficient conduct of civil
    litigation.  Ibid at para. 32.

[17]

The
    motion judge concluded that he would dismiss the request for relief from the
    deemed undertaking for three reasons.  First, the deemed undertaking exists to
    protect Ms. Sobeskis privacy.  Her marital affairs fall within such
    protection.  Second, Mr. Mamo has not satisfied the court that he cannot make
    out his defence without the documents in issue.  He observed that some of the
    documents are not covered by the undertaking.  There are other means available
    to him to make his case such as the cross-examination of Mr. Sobeski at trial. 
    He could also call Ms. Sobeski as a witness.  Third, Mr. Mamos status as a
    lawyer is important and relieving him from his deemed undertaking would not
    totally release him from his professional fiduciary duties to a former client.

[18]

Having
    concluded that Mr. Mamo was not entitled to be relieved from the deemed
    undertaking, the motion judge acknowledged at para. 50 of his reasons that this
    created a dilemma for Mr. Mamo:

Thus, Mr. Mamo confronts the apparent dilemma that he must
    honour the deemed undertaking, but in his affidavit of documents, he must
    disclose documents in his possession, control, or power and he must also
    disclose documents that were formerly in his possession, control, or power.

[19]

The
    motion judge then proposed what he described as an escape route for Mr. Mamo
    at para. 54 of his reasons:

The escape route for Mr. Mamo is for him to return Ms. Ionsons
    documents and property to her.  While he must disclose her documents, he cannot
    and he need not produce them for Mr. Sobeski.  The ultimate result is that in
    his affidavit of documents, Mr. Mamo should: (1) disclose and produce for
    inspection, the relevant documents that are not covered by the deemed
    undertaking; and (2) disclose but not produce for inspection the documents that
    have been returned to Ms. Ionson, which are the documents covered by the deemed
    undertaking.  Then, either party may, as they may be advised, bring a motion
    under rule 30.10 for an order for production from a non-party with leave. 
    Either party may call Ms. Ionson as a witness at the trial.

[20]

In
    the result, the motion judge dismissed the motion.  However, the parties were
    unable to agree on the language of the formal order.  Counsel for Ms. Sobeski
    wanted the following paragraph included in the order:


2.       THIS COURT ORDERS AND DIRECTS that the Defendant,
      Alfred Mamo, forthwith deliver to Nynna Sobeski, also known as Nynna Ionson all
      her documents and property in his possession.


The parties returned to the motion judge to settle the
    order.

[21]

Counsel
    for Mr. Mamo submitted that on his motion he did not seek the relief requested
    in paragraph 2 and therefore it should not be included in the formal order. 
    The motion judge rejected this submission and in supplementary reasons, stated
    at paras 5, 6, 7 and 8:


[5]      It is true that Mr. Mamo did not ask specifically for
      the relief that was granted to him.  He did, however, to quote from his notice
      of motion, seek Such other Order as this Honourable Court may deem just.

[6]      Rule 1.05 of the
Rules of Civil Procedure
provides that when making an order under these rules, the court may impose
      such terms and give such directions as are just.

[7]      In my opinion, paragraph 2 of the draft order is both
      necessary and just for the fair resolution of the litigation, and, as I explain
      in my Reasons for Decision, this direction provides a means for Mr. Mamo to
      fulfill his professional obligations to Ms. Ionson, which I add include
      returning her property to her, and also defend himself in the litigation
      brought by Mr. Sobeski and also comply with the
Rules of Civil Procedure
.

[8]      Pursuant to the jurisdiction provided by rule 1.05,
      paragraph 2 is a direction that is just in the circumstances of this case.


THE APPEAL

[22]

Counsel
    for Mr. Mamo asserts three grounds of appeal.

[23]

First,
    the motion judge failed to properly apply the test for providing relief from
    the deemed undertaking by failing to balance the competing interests of the
    parties in determining whether the interests of justice outweighed any
    prejudice that would result from the disclosure.

[24]

Second,
    the motion judge erred in referring to issues of solicitor/client
    confidentiality, privilege and other unspecified professional duties not
    apparent on the face of the records.  Counsel submitted that none of the
    documents were protected by solicitor/client privilege since they were produced
    to Mr. Sobeski in the matrimonial litigation.  Counsel also stated that nothing
    Ms. Sobeski said in confidence to Mr. Mamo was sought to be used.

[25]

Third,
    the motion judge erred in directing that the documents in issue should be
    returned to Ms. Sobeski.

ANALYSIS

(a)     Does the deemed undertaking rule apply to the circumstances
    of this case?

[26]

I
    start with the express language of rule 30.01.  The complete text of the rule
    is attached as an appendix to these reasons.

[27]

Before
    a court considers whether it should grant relief from the deemed undertaking
    pursuant to rule 30.1.01(8), it must first decide whether the deemed
    undertaking applies in the particular circumstances presented to the court. 
    Rules 30.1.01(1), (2) and (3) provide:

APPLICATION

30.1.01

(1)
This
    Rule applies to,

(a) evidence obtained under,

(i)      Rule 30 (documentary discovery),

(ii)      Rule 31 (examination for discovery),

(iii)     Rule 32 (inspection of property),

(iv)     Rule 33 (medical examination),

(v)     Rule 35 (examination for discovery by written
    questions); and

(b)  information obtained from evidence referred to in clause
    (a). O. Reg. 61/96, s. 2; O. Reg. 627/98, s. 3.


(2)
This Rule does
    not apply to evidence or information obtained otherwise than under the rules
    referred to in subrule (1).  O. Reg. 61/96, s. 2.

Deemed Undertaking


(3)
All parties
    and their lawyers are deemed to undertake not to use evidence or information to
    which this Rule applies for any purposes other than those of the proceeding in
    which the evidence was obtained.  O. Reg. 61/96, s. 2; O. Reg. 575/07, s. 4.

[28]

The
    first question is: Did Mr. Mamo obtain Ms. Sobeskis documents under Rule 30
    (documentary discovery), Rule 31 (examination for discovery), Rule 32
    (inspection of property), Rule 33 (medical examination) and Rule 35
    (examination for discovery by written questions) as specified in rule
    30.1.01(1)(a)?

[29]

This
    question was not raised in either the written or oral submissions of the
    parties.  Indeed both parties proceeded on the basis that the deemed
    undertaking rule applied in this case.  After the oral argument, we invited
    counsel to address this question in writing.

[30]

Counsel
    for Mr. Mamo submitted that for the documents to be covered by the deemed
    undertaking, they must have been obtained under Rule 30 (documentary
    discovery).  Counsel further submitted that documentary discovery is a process
    by which one party to a proceeding discloses relevant documents to the other
    parties.  Mr. Mamo obtained Ms. Sobeskis documents from his client for the
    dominant purpose of her defence and not from another party in the matrimonial
    proceeding.

[31]

Counsel
    for Mr. Mamo also submits that limiting the application of the deemed
    undertaking accords with the common law rationalization for the rule as recognized
    by Morden A.C.J.O. in
Goodman v. Rossi
(1995), 24 O.R. (3d) 359 at
    para. 35 (C.A.) quoting
Prudential Assurance Co. v. Fountain Page Ltd.
,
    [1991] 1 W.L.R. 756 (Q.B.) at pp. 764-765:

The rational basis for the rule is that
where one party compels another
,
either
    by the enforcement of a rule of court or a specific order of the court
,
to disclose documents
or information
    whether that other wishes to or not, the party obtaining the disclosure is
    given this power because the invasion of the other partys rights has to give
    way to the need to do justice between those parties in the pending litigation
    between them; it follows from this that the results of such compulsion should
    likewise be limited to the purpose for which the order was made, namely, the
    purposes of that litigation then before the court between those parties and not
    for any other litigation or matter or any collateral purpose ... [italics in
    original; underlining added].

Counsel reasons that the production of documents by
    Ms. Sobeski to her own lawyer for the dominant purpose of proving her case was
    not contemplated by the common law implied undertaking and therefore the deemed
    undertaking in rule 31.1.01(3) should be viewed in the same way.  This of
    course differs from Mr. Mamos original position.

[32]

Counsel
    for Ms. Sobeski submits that Mr. Mamo obtained the documents under Rule 19 of
    the
Family Law Rules
that require a party to disclose to other parties
    documents relevant to any issue in the case, which is equivalent to Rule 30 of
    the
Rules of Civil Procedure
.  Counsel also observes that Rule 20 of
    the
Family Law Rules
,

which provides for oral discovery, is similar to an examination for
    discovery under Rule 31 of the
Rules of Civil Procedure
.  Some of the
    documents in issue were produced during the questioning process provided for in
    Rule 20 of the
Family Law Rules
.  As I understand this submission, Rules
    19 and 20 under the
Family Law Rules
are the equivalent of documentary
    and oral discovery under Rules 30 and 31 of the
Rules of Civil Procedure
and that a proper interpretation of the
Family Law Rules
19 and 20 is
    that the deemed undertaking ought to apply.

[33]

In
    my view, while the documents were provided to Mr. Mamo by Ms. Sobeski in
    connection with her retainer of Mr. Mamo in the matrimonial proceedings, they
    were not obtained by Mr. Mamo under rule 30.1.01(1)(a).  Rule 30.1.01(2)
    restricts the deemed undertaking to evidence or information obtained under rule
    30.1.01(1). As this court stated in
Kitchenham v. AXA Insurance (Canada)
,
    2008 ONCA 877, 94 O.R. (3d) 276, at para. 10, the Rule exists to protect the
    privacy interest of the party compelled by the rules of disclosure to provide
    that information
to another party
to the litigation (emphasis added).

[34]

I
    conclude from the above that on the basis of the express language of rule
    30.1.01(1) and (2), the deemed undertaking does not apply to Mr. Mamo in these
    circumstances.

[35]

As
    I have concluded that the deemed undertaking rule does not apply in the
    circumstances of this case, it is unnecessary for me to consider the first
    ground of appeal  whether the motion judge properly applied the test for
    providing relief pursuant to rule 30.1.01(8).  It is also unnecessary to
    consider the second ground of appeal concerning solicitor/client privilege and
    related issues.  Mr. Mamo only seeks to use the documents that were produced to
    Mr. Sobeski in the matrimonial proceedings not subject to solicitor/client
    privilege.  I now turn to the third ground of appeal  whether the motion judge
    erred in directing that the documents in issue should be returned to Ms.
    Sobeski.

(
b
)     Did the motion judge err in
    ordering that Mr. Mamo should return the documents to Ms. Sobeski?

[36]

The
    motion judge ordered that the documents should be returned to Ms. Sobeski as
    part of his plan to provide a means for Mr. Mamo to escape the dilemma of
    having to honour the deemed undertaking while, at the same time, having to
    disclose the documents in his affidavit of documents.  The so-called escape
    route also provided Mr. Mamo with the possibility that he could bring a motion
    for production of the documents under rule 30.10.

[37]

The
    return of the documents, as already noted, was not requested by Mr. Mamo in his
    notice of motion.  Surprisingly, there was no cross-motion by Ms. Sobeski for
    the return of the documents.  It was only when the motion judge devised the
    escape route that Ms. Sobeski, on the settlement of the order, sought an
    express provision for the return of the documents, which the motion judge
    granted.  Counsel for Mr. Mamo, both before the motion judge and on this appeal,
    takes the position that the motion judge was not entitled to grant relief that
    was not asked for.  He cites three cases of this court in support of that
    position:
Kalkinis (litigation guardian of) v. Allstate Insurance Co. of
    Canada
(1998), 41 O.R. (3d) 528 (C.A.);
Rodaro et al v. Royal Bank of
    Canada

et al
(2002), 59 O.R. (3d) 74 (C.A.) at paras. 60-61; and
Clarkson
    v. Lukovich
, [1988] O.J. 902 (C.A.).

[38]

In
    my view, the motion judge was not entitled, of his own motion, to devise a remedy
    that was not requested by either party to this dispute.  By doing so, the
    motion judge denied Mr. Mamo the fair opportunity to address that issue until
    the settlement of the order by way of written submissions, which in my view was
    too late: see
460635 Ontario Ltd. v. 1002953 Ontario Inc.
, (1999) 127 O.A.C. 48, at para. 9.  I would therefore set aside the order
    requiring Mr. Mamo to return the documents in issue to Ms. Sobeski.  However,
    in doing so I am mindful that Mr. Mamos retainer has been terminated and the
    documents in issue are the property of Ms. Sobeski.  I would therefore set
    aside the order of the motion judge, without prejudice to Ms. Sobeskis right
    to take the appropriate steps for the return of her documents, which to date
    she has not done, and without prejudice to Mr. Mamos right to bring the
    appropriate motion under rule 30.10 for the production of the documents for the
    purpose of this action.

disposition

[39]

In
    the result, I would allow the appeal and set aside the order of the motion
    judge.

Costs

[40]

This
    case was originally argued by both parties on the basis that the deemed
    undertaking rule applied.  In view of the fact that I would dismiss the appeal
    on the basis that the deemed undertaking rule does not apply, I would make no
    order as to costs of the appeal.  As to the costs before the motion judge, if
    the parties are not able to agree, they can make brief written submissions to the
    court.  The appellant is to make his submissions within 15 days of the release
    of this order and Ms. Sobeski may make her submissions within 10 days
    thereafter.  Such submissions shall be double spaced and limited to 5 pages.

Released:

AUG 28 2012                          Robert P.
    Armstrong J.A.

WKW                                     I agree W.K.
    Winkler, C.J.O.

I agree
    H.S. LaForme J.A.


APPENDIX

RULE 30.1 DEEMED UNDERTAKING

APPLICATION

30.1.01
(1)  This
    Rule applies to,


(a) evidence obtained under,

(i) Rule 30 (documentary discovery),

(ii) Rule 31 (examination for discovery),

(iii) Rule 32 (inspection of property),

(iv) Rule 33 (medical examination),

(v) Rule 35 (examination for discovery by written
      questions); and

(b) information obtained from evidence referred to in clause
      (a). O. Reg. 61/96, s. 2; O. Reg. 627/98, s. 3.


(2)  This
    Rule does not apply to evidence or information obtained otherwise than under
    the rules referred to in subrule (1). O. Reg. 61/96, s. 2.

Deemed Undertaking

(3)  All
    parties and their lawyers are deemed to undertake not to use evidence or
    information to which this Rule applies for any purposes other than those of the
    proceeding in which the evidence was obtained. O. Reg. 61/96, s. 2;
    O. Reg. 575/07, s. 4.

Exceptions

(4)  Subrule
    (3) does not prohibit a use to which the person who disclosed the evidence
    consents. O. Reg. 61/96, s. 2.

(5)  Subrule
    (3) does not prohibit the use, for any purpose, of,


(a) evidence that is filed with the court;

(b) evidence that is given or referred to during a hearing;

(c) information obtained from evidence referred to in clause
      (a) or (b). O. Reg. 61/96, s. 2.


(6)  Subrule
    (3) does not prohibit the use of evidence obtained in one proceeding, or
    information obtained from such evidence, to impeach the testimony of a witness
    in another proceeding. O. Reg. 61/96, s. 2.

(7)  Subrule
    (3) does not prohibit the use of evidence or information in accordance with
    subrule 31.11 (8) (subsequent action). O. Reg. 61/96, s. 2.

Order that Undertaking does not Apply

(8)  If
    satisfied that the interest of justice outweighs any prejudice that would
    result to a party who disclosed evidence, the court may order that subrule (3)
    does not apply to the evidence or to information obtained from it, and may
    impose such terms and give such directions as are just. O. Reg. 61/96,
    s. 2; O. Reg. 263/03, s. 3.





[1]

Juman
is a British Columbia case and it was the common
    law implied undertaking that was in issue in that case.


