



COURT OF APPEAL FOR ONTARIO

CITATION: Glegg v. Glass, 2020 ONCA 833

DATE: 20201222

DOCKET: C67716

Pepall, van Rensburg and Brown
    JJ.A.

BETWEEN

Robert Glegg

Applicant (Appellant)

and

Lorne Glass, Christina
    Doris/Christen Seaton Burrison Hudani LLP, Justice for Children and Youth/Legal
    Aid Ontario, and Linda Sapiano

Respondents (Respondents)

James Zibarras, for the appellant

James R. G. Cook and James Beesley, for
    the respondent, Lorne Glass

Ian McKellar, for the respondents,
    Christina Doris and Christen Seaton Burrison Hudani LLP

Heard: October 19, 2020 by video conference

On appeal from the order of Justice Paul
    M. Perell of the Superior Court of Justice, dated November 18, 2019, with
    reasons reported at 2019 ONSC 6623, 34 R.F.L. (8th) 394.

BROWN J.A.:

I.        OVERVIEW

[1]

The appellant, Robert Glegg, an Ontario
    resident, is suing his ex-wife, Katalin Van Den Hurk, and her husband, Richard
    Peacey, in Florida for damages for parental alienation from his daughter,
    Olivia, now an adult. In the Florida proceeding, the appellant obtained letters
    of request that sought the assistance of the Ontario courts in obtaining the
    production of documents from the former lawyers for his ex-wife and daughter.
[1]
The application judge
    dismissed the application on the basis that it would be contrary to public
    policy to enforce the letters of request.

[2]

The appellant advances two main grounds of
    appeal. First, he argues that the application judge conducted the hearing in a
    procedurally unfair manner. Second, he contends the application judge erred in
    law by concluding that enforcing the letters of request would offend the public
    policy of this province.

[3]

I would dismiss the appeal. As I explain below,
    in my view there was no unfairness in the process the application judge
    followed. Further, the application judge properly applied the public policy
    analysis in declining to enforce the letters of request on the basis that they
    would interfere with solicitor-client privilege and confidentiality. This was a
    sufficient basis upon which to dismiss the application.

II.       SUMMARY OF THE MATERIAL EVENTS

The Ontario custody and child support
    litigation

[4]

The appellant and Ms. Van Den Hurk married in
    1998, separated in 2001, and divorced in 2002. Their daughter, Olivia, was born
    in 1999. Pursuant to a separation agreement dated April 20, 2001, mother and
    father had joint custody of Olivia and each agreed to live within a stipulated
    distance of Oakville until she turned 18.

[5]

In November 2013, Ms. Van Den Hurk and Mr.
    Peacey moved to Florida. Olivia visited her mother in Florida in August 2014,
    at which time she was 15 years old. Following Olivias arrival in Florida, Ms.
    Van Den Hurks Ontario counsel wrote the appellant to advise that Olivia did
    not want to return to Ontario and had enrolled in a Florida high school.

[6]

In September 2014, the appellant commenced
    litigation against his ex-wife in Ontario and Florida that resulted in Olivias
    return to Ontario. Extensive litigation ensued in Ontario regarding custody of
    and support for Olivia. The details of that litigation have been canvassed at
    length in the reasons of Gray J. dated October 30, 2017 (
O.G. v. R.G
.,
    2017 ONSC 6490, 97 R.F.L. (7th) 295), the reasons of this court dated February 9,
    2017 (
R.G. v. K.G.
, 2017 ONCA 108, 136 O.R. (3d) 689), and the reasons
    of the application judge, at paras. 26 to 89. There is no need to repeat them.
    For the purposes of this appeal, the following brief summary of the facts will suffice.

[7]

When Olivia turned 16 years old, she sought and
    obtained an order from an Ontario court that she had withdrawn from her
    parents control. The appellant sought to overturn the withdrawal order. His
    efforts to do so were ended by this courts February 9, 2017 decision. In its
    reasons, this court stated, at paras. 40 and 67:

[The appellants] continued pursuit of this
    issue confirms [Olivias] position that he is obsessed with controlling her and
    that this has blinded him to the reality that it is he, not her mother, who is
    the reason that she withdrew from parental control. It also reinforces the
    strength of the findings in the courts below.



The degree to which the court will follow the
    wishes of the child will depend upon the age and level of maturity of the child
    and will be subject to the judge's discretion as she seeks to determine the
    child's best interests. When, as here, the child is months away from her
    eighteenth birthday, a continuation of litigation involving her indicates more
    about the parent's needs than the child's.

[8]

In 2016, Olivia commenced an application for
    child support against her father, which he resisted. Although Olivia obtained
    orders for interim child support, on December 13, 2017 she withdrew her
    application. The Ontario proceedings in respect of her custody and support
    thereby ended.

The Florida Action and Letters of Request

[9]

In July 2018, the appellant commenced a
    proceeding in the Circuit Court of the Seventeenth Judicial Circuit in and for
    Broward County, Florida (the Florida Court) against Ms. Van Den Hurk and Mr.
    Peacey (the Florida Action). As described in his Verified Complaint, the
    appellant seeks to recover from his ex-wife and her husband $9.6 million in damages,
    including punitive damages should such award be appropriate, arising from an
    intentional course of conduct by Defendants to interfere with the custodial
    rights of Plaintiff and to intentionally cause economic, emotional, and psychological
    harm to Plaintiff. The appellants Verified Complaint asserts two counts
    against his ex-wife and her husband: (i) intentional interference with
    custodial rights granted by Ontario court orders, including orchestrating the
    daughters proceedings for a declaration that she was free from parental
    control; and (ii) intentional infliction of emotional distress resulting from
    the alleged interference in the appellants custodial rights, including the
    violation of Ontario court orders.

[10]

In May and June 2019, the appellant sought and
    obtained two letters of request from the Florida Court seeking the assistance
    of Ontario courts to secure the production of documents for use in the Florida
    Action (the Letters of Request). Specifically, the Letters of Request sought
    production of documents from two former lawyers for Ms. Van Den Hurk, Linda
    Sapiano and Christina Doris, as well as from lawyers who had acted for Olivia,
    Lorne Glass and Justice for Children and Youth (JFCY). The Subpoenas for
    Production of Documents from Non-Party attached to the Letters of Request
    describe the documents for which production is sought. Appendix A to these
    reasons reproduces the Subpoena directed to Mr. Glass. The Subpoena states that
    for some, but not all, categories of documents sought, attorney-client
    privileged/work production privileged information may be redacted.

The Ontario enforcement application

[11]

In July 2019, the appellant commenced an
    application seeking to enforce the Letters of Request against Ms. Sapiano, JFCY,
    Mr. Glass, and Ms. Doris, together with her law firm, Christen Seaton Burrison
    Hudani LLP.

[12]

The application was withdrawn against Ms.
    Sapiano.

[13]

Responding materials were filed by the remaining
    respondents. Cross-examinations were conducted of the appellant, Ms. Doris, and
    Ms. Mary Birdsell, a lawyer and JFCYs executive director.

[14]

The events surrounding the return of the
    application are relevant to the appellants grounds of appeal, so they require
    some elaboration. Prior to the return of the application, the appellant reached
    a settlement with Ms. Sapiano and Ms. Doris in which he agreed to withdraw the
    application against Ms. Sapiano, and in which Ms. Doris agreed not to oppose
    the application provided the redaction of privileged information applied to all
    categories of documents. On the return of the application, the application
    judge was informed that the appellant was withdrawing the application against
    Ms. Sapiano and Ms. Doris was not opposing the proceeding: at paras. 15, 19, and
    22. It does not appear that the application judge was told the terms of the
    settlement.

[15]

On the return of the application, the appellant also
    sought an adjournment of the proceeding against JFCY. As explained in his
    reasons, at para. 20, the application judge refused to adjourn the application
    against JFCY unless the entire application was adjourned since the appellants
    application could not properly be heard seriatim, because the whole factual
    record was relevant and had been relied on. For instance, the application
    judge noted that the appellant, in his application as against Mr. Glass, was relying
    on information from the affidavit and cross-examination of Ms. Birdsell and
    that the positions being taken by the parties were intertwined.

[16]

Following a brief recess, the appellant advised
    that he was withdrawing his application with prejudice against JFCY: at para.
    21.

[17]

The application then proceeded against Mr.
    Glass, Ms. Doris, and her law firm.

[18]

The application judge dismissed the application.
    He concluded that it would be against public policy to enforce the Letters of
    Request for two reasons. First, it would offend public policy to enforce letters
    of request from a foreign court in aid of a cause of action that is forbidden
    in Ontario: at para. 122. Second, he concluded that the application should be
    dismissed because it interfered with solicitor-client privilege and client
    confidentiality, notions fundamental to the administration of justice and to
    the Canadian legal system: at para. 134.

[19]

The application judge also directed the
    appellant to deliver copies of his reasons to the presiding judge in the
    Florida Court and to this court, which was scheduled to hear an appeal in
    criminal proceedings the appellant had attempted to initiate against Ms. Van Den
    Hurk: at para. 143.

iii.      ISSUES
    ON APPEAL

[20]

The appellant submits that the order of the
    application judge should be set aside and an order enforcing the Letters of Request
    should issue. The appellant argues the application judge made two types of
    errors:

(1)

Procedural errors that rendered the hearing process unfair, namely:

(a)

reviewing and relying on materials not properly before the court;

(b)

ordering relief not sought by the parties; and

(c)

relying on legal theories not raised by the parties.

(2)

Substantive errors of law regarding the scope of the public policy
    ground to refuse the enforcement of letters of request, namely in concluding that:

(a)

the Letters of Request would interfere with solicitor-client
    privilege and client confidentiality; and

(b)

it would be contrary to public policy to enforce the Letters of
    Request in aid of a cause of action that is forbidden in Ontario.

IV.     ISSUE
    1: WAS THE HEARING PROCEDURALLY UNFAIR?

[21]

The appellant advances an overarching submission
    that the application judge exceeded his role as a judge and assumed the role of
    an advocate, to the prejudice of the appellant. The appellant points to three
    specific instances of such conduct that, he contends, rendered the hearing
    process unfair.

Issue 1(a): The improper reliance on certain
    of the application materials

[22]

First, the appellant argues that the application
    judge acted unfairly by engaging in independent investigations and reviewing
    materials that were not properly before him.

[23]

The application judges reasons contain a
    lengthy description of the history of the custody and support litigation that
    took place in Ontario and Florida prior to the appellants initiation of the Florida
    Action. The appellant complains that this description was almost entirely
    drawn from materials not before the Application Judge at the hearing, including
    the Surplus Materials, as well as Florida and Ontario decisions. He argues
    that the application judge should have invited appellants counsel to make submissions
    on those facts.

[24]

In his factum, the appellant coined the term
    Surplus Materials to describe materials that certain parties had filed with
    the court but which the appellant did not list in his Confirmation of
    Application, specifically: (a) the affidavit and cross-examination transcript
    of Ms. Birdsell, the affiant for JFCY; (b) the responding Application Record of
    Doris; (c) the responding Factum and Book of Authorities of JFCY; and (d) court
    decisions in Florida and Ontario. Since the application against JFCY was
    withdrawn at the hearing and Ms. Doris did not oppose the application, the
    appellant contends that the application judges use of their materials amounted
    to an impermissible independent investigation. According to the appellant, this
    deprived him of a fair opportunity to correct or contradict the facts asserted
    in those materials.

[25]

I see no merit in this submission for several
    reasons.

[26]

First, the appellants own litigation conduct
    undermines his submission. In his main factum on the application, the appellant
    referred to some of the so-called Surplus Materials. Although the appellant
    criticizes the application judge for referring to the evidence of Ms. Birdsell
    from JFCY, the appellant referred to her affidavit and cross-examination at paras.
    33, 61 and 71 of his main factum. This quite understandably led the application
    judge to describe the positions being taken by the parties as intertwined: at
    para. 20.

[27]

As well, one exhibit to the appellants
    affidavit in support of the application was his Verified Complaint in the
    Florida Action, to which were attached several of the Ontario and Florida
    custody orders. The responding materials filed by Ms. Doris and JFCY reproduced
    some of the other orders made in those proceedings. It was open to the
    application judge to consider all of the orders to gain an accurate
    understanding of the events that led to the issuance of the Letters of Request.
[2]


[28]

Second, I do not accept the appellants
    submission that the application judge could only refer to materials that the
    appellant had listed in the Confirmation Form he filed for the return of the
    application.

[29]

Rule 38.09.1(1) of the
Rules of Civil
    Procedure
requires the party who makes an application on notice to give the
    registrar, at least three days before the hearing date, a confirmation of
    application using Form 38B. If no confirmation is given, the application will
    not be heard except by order of the court: r. 38.09.1(2). Regional practice may
    modify the content of confirmation form. The modified Form 38B used in the
    Toronto Region requires counsel to identify the materials that have been filed
    and will be relied upon for the hearing of the application. As the form states,
    it must be attached to the materials being filed and all materials to be
    relied on at hearing must be filed in one complete package within the required
    timelines.
[3]

[30]

As is apparent from the language on the Toronto
    Regions modified confirmation form, the document operates as a device that
    assists court staff in the Civil Scheduling Unit to identify the materials that
    should be delivered to the judge hearing an application or motion. The form
    does not act as some sort of administrative constraint on a judges discretion
    to determine the materials that are in fact relevant to the decision he has to
    make.

[31]

Third, when the application judge refused to
    adjourn the application as against JFCY, he advised the parties that Mr.
    Gleggs application could not properly be heard seriatim, because the whole
    factual record was relevant and had been relied on: at para. 20. Yet, in oral
    argument, appellants counsel did not dispute the proposition that on the
    return of the application no party asked the application judge to disregard
    specific materials.

[32]

Fourth, in response to a question from the bench,
    appellants counsel clarified that his client was not taking the position that
    the application judges summary of the facts was based on inadmissible evidence.
    Instead, the appellant submitted that much of that summary was irrelevant to
    the application to enforce the Letters of Request, where the focus should be on
    the Florida Action.

[33]

I disagree. First, as noted at para. 27, the
    appellants Verified Complaint filed in support of the application to enforce
    the Letters of Request described and attached several of the orders made in the
    Ontario custody proceedings. Second, in considering whether to enforce letters
    of request, a judge must determine whether the request imposes any limitation
    or infringement on Canadian sovereignty and whether justice requires an order
    for the taking of commission evidence:
Lantheus Medical Imaging Inc. v.
    Atomic Energy of Canada Ltd.
, 2013 ONCA 264, 115 O.R. (3d) 161, at para. 59.
    To make that determination, a judge must understand the circumstances that led
    to the issuance of the letters of request. That is especially so in the unusual
    circumstances presented by this case, where extensive litigation in Ontario
    preceded the initiation of the foreign proceeding in which the Letters of Request
    were issued.

[34]

Accordingly, I am not persuaded that the
    application judge improperly relied on some of the application materials filed
    with the court.

Issue 1(b): Ordering relief not sought by the
    parties

[35]

The application judge ordered the appellant to
    deliver copies of his reasons to the presiding judge in the Florida Court and
    to this court in advance of the hearing of his appeal of the stay of his
    private prosecution of criminal charges against his ex-wife: at para. 144. The
    appellant submits that since no party had asked for such relief, the
    application judge did not have the authority to make those directions. He
    contends that the application judges directions had a deleterious effect on
    the integrity and fairness of those other proceedings.

[36]

I do not accept this submission. The application
    judge had the authority to make the direction he did. Rule 38.10(1)(a) provides
    that a judge hearing an application may grant the relief sought or dismiss or
    adjourn the application, in whole or in part and with or without terms. It was
    open to the application judge to direct the delivery of his reasons to other
    courts as a term of his dismissal of the application.

[37]

Moreover, no prejudice could result from the
    application judges direction. The Florida Court was entitled to be told, as a
    matter of comity, the reasons why the Ontario court declined to enforce its Letters
    of Request. Further, when this court hears the appellants appeal regarding the
    stay of his private prosecution against his ex-wife, no doubt the appellant can
    make submissions about the relevance or irrelevance and accuracy or inaccuracy of
    the facts set out in the application judges reasons. This court will decide
    his appeal on the proper record.

Issue 1(c): Relying on legal theories not
    raised by parties

[38]

The final procedural error asserted by the
    appellant is that the application judge considered and relied on a legal theory
    not raised by counsel and without giving appellants counsel an opportunity to
    make responsive submissions.

[39]

In his reasons, the application judge concluded
    that it would be contrary to public policy to enforce the Letters of Request
    from the Florida Court in aid of a cause of action that was forbidden in Ontario.
    Citing the case of
Frame v. Smith
, [1987] 2 S.C.R. 99, the application
    judge held that in Ontario a parent could not sue his spouse or third parties
    for interfering with the parents relationship with his children and denying
    him the opportunity to give the children parental love, care, and guidance: at
    paras. 122 and 123.

[40]

The appellant submits that the issue of whether
    the Florida Action offended public policy was not raised at the hearing by the
    parties or the application judge, nor did the application judge ask the parties
    for submissions on
Frame v. Smith
. As a result, the application was
    decided without submissions from the appellant on
Frame v. Smith
,
    thereby denying him a fair opportunity to respond, resulting in prejudice to
    the appellant.

[41]

I do not accept the appellants submission. The
    record discloses that the application judge followed a fair process.

[42]

The appeal record does not contain a transcript
    of the hearing before the application judge. However, at the conclusion of the
    hearing on October 28, 2019, the application judge reserved his decision and
    wrote, in a brief endorsement:

[The appellant] is at liberty to file any
    additional authorities and written argument on the issue of whether, apart from
    the issue of solicitor-client privilege, there are other public policy issues
    relevant to the enforcement of letters rogatory, that are relevant to the
    request being made in the immediate case.

[43]

Pursuant to that endorsement, the appellant
    filed a supplementary factum dated November 4, 2019. The second part of that
    factum bore the heading: The underlying substantive claims in the Florida
    Action do not have to be recognized claims in Ontario. Under that heading, the
    appellant submitted that in determining whether to enforce letters of request,
    the inquiry is limited to whether the production of the evidence or documents sought
    would be contrary to public policy, not to a consideration of the substantive
    claims underlying the foreign litigation. The appellant argued that the
    substantive claims underlying the Florida Action did not form a proper legal
    or other basis for refusing to grant the requested [Letters of Request].

[44]

While the appellants supplementary factum did
    not refer to the decision in
Frame v. Smith
, the second part of that
    document clearly reveals the appellant understood that the application judge
    was considering whether the fact that Ontario law did not recognize the cause
    of action asserted in the Florida Action might bar enforcement of the Letters
    of Request on the grounds of public policy. Consequently, I see no unfairness
    in the process followed by the application judge.

Conclusion on Issue 1

[45]

For these reasons, I am not persuaded that the
    appellant was denied procedural fairness in the hearing before the application
    judge.


V.

ISSUE 2: DID THE APPLICATION JUDGE ERR IN HIS
    PUBLIC POLICY ANALYSIS?

The public policy issue stated

[46]

The application judge dismissed the appellants
    application to enforce the Letters of Request on the basis that they
    contravened public policy in two respects:

(a)
the Letters of Request interfere with
    solicitor-client privilege and client confidentiality, notions fundamental to
    the administration of justice and to the Canadian legal system: at para. 134, and

(b)
it would be contrary to public policy to
    enforce the Letters of Request in aid of a cause of action that is forbidden in
    Ontario: at para. 122.

[47]

The appellant appeals both conclusions.

The applicable legal principles

[48]

Before considering the parties submissions, a
    brief summary is in order of the principles regarding the scope of the public
    policy factor used in the analysis to determine whether to enforce letters of
    request.

[49]

Foreign letters of request are to be given full
    force and effect by domestic courts unless they are contrary to public policy
    or otherwise prejudicial to the sovereignty or the citizens of the jurisdiction
    to which the request is directed:
Gulf Oil Corporation v. Gulf Canada Ltd.
    et al.
, [1980] 2 S.C.R. 39;
R. v. Zingre
, [1981] 2 S.C.R. 392, at
    p. 401;
Presbyterian Church of Sudan v. Taylor
(2006), 275 D.L.R.
    (4th) 512 (Ont. C.A.), at para. 17. In considering a request to enforce, a
    court must balance the possible infringement of Canadian sovereignty with
    whether justice requires an order for the taking of commission evidence, in
    view of the natural desire to assist foreign courts:
Zingre
, at p.
    403. As put in
Lantheus
, at para. 59, quoting
France (Republic) v.
    De Havilland Aircraft of Canada Ltd.
(1991), 3 O.R. (3d) 705 (C.A.), at
    para. 37, the test requires that the court:

[C]onsider whether the request imposes any
    limitation or infringement on Canadian sovereignty, and whether justice
    requires an order for the taking of commission evidence. The considerations
    encompassed by the phrase Canadian sovereignty  include an assessment of
    whether the request would give extra-territorial authority to foreign laws
    which violate relevant Canadian or provincial laws ; whether granting the
    request would infringe on recognized Canadian moral or legal principles ; and
    whether the request would impose an undue burden on, or do prejudice to, the
    individual whose evidence is requested.

[50]

In conducting this balancing exercise, a court
    considers whether the evidence, including the letters of request, establishes
    the six non-exhaustive factors set out in
Re Friction Division Products,
    Inc. and E.I. Du Pont de Nemours & Co. Inc. et al.

(No. 2)
(1986),
    56 O.R. (2d) 722 (H.C.), at p. 732, and
Fecht v. Deloitte & Touche
(1996), 28 O.R. (3d) 188 (Gen. Div.), at p. 194, affd (1997) 32 O.R. (3d) 417
    (C.A.).
[4]
These factors operate as useful guideposts, not rigid pre-conditions, to the
    exercise of a judges discretion:
Lantheus
, at paras. 61 and 69;
Perlmutter
    v. Smith
, 2020 ONCA 570, 152 O.R. (3d) 185, at para. 25.

[51]

One of the factors is whether enforcing the letters
    of request would be contrary to public policy:
Treat America Ltd. v. Nestlé
    Canada Inc.
, 2011 ONCA 560, 340 D.L.R. (4th) 707, at para. 12. In
    considering this factor, the court focuses on whether it would be contrary to
    the public interest to require the production of the evidence or documents
    sought. In
Re Westinghouse Electric Corporation and Duquesne Light Co.
(1977), 16 O.R. (2d) 273 (H.C.), the letters of request sought the production
    of documents that were subject to federal regulations prohibiting their
    disclosure. The court declined to enforce the letter of request. One factor militating
    against enforcement was the Government of Canadas policy that the information
    and documents sought should not be disclosed. The court concluded that, in exercising
    its discretionary power to enforce letters of request, it should take judicial
    cognizance of the stated public policy and not force the disclosure of
    information if to do so would, on the authority of the Government, be harmful
    to the public interest: p. 290. The decision in
Westinghouse Electric
was cited with approval by the Supreme Court of Canada in
Gulf Oil
, at
    pp. 56-58.
[5]

Issue 2(a): The solicitor-client privilege
    public policy ground

[52]

The application judge stated that the Letters of
    Request offended public policy because they sought documents to which
    solicitor-client privilege applied or presumptively applied. He held that, to
    the extent some of the documents fell in the territory of administrative
    information relating to the solicitor-client relationship, the appellant had
    not rebutted the presumption of privilege by evidence showing that there is no
    reasonable possibility that disclosure of the requested information would lead
    to the revelation of confidential information, or that the requested
    information was not linked to the merits of the case: at para. 142. The
    application judge also concluded that, in the circumstances, a privilege log
    approach would not be appropriate as it would require the lawyers to breach
    their professional duty of confidence and violate solicitor-client privilege:
    at paras. 140-41.

[53]

In his notice of appeal, the appellant alleges several
    errors committed by the application judge in respect of those findings. The
    main points are that the application judge erred by: finding the lawyers
    communications with third parties were privileged or confidential; misapplying
    solicitor-client privilege to third party communications that are not protected
    by the privilege; finding that a privilege log would breach solicitor-client
    privilege and offend public policy; and holding that the appellant was required
    to show there is no reasonable possibility that the disclosure of the requested
    information would lead to the revelation of solicitor-client communications.

[54]

Although the appellant did not address the issue
    in his factum, at the hearing appellants counsel submitted that: the
    application judges reasons on the issue of solicitor-client privilege were
obiter
;
    the appellant has never asked for privileged documents; the appellant had
    offered to pay the respondents for the time they spent complying with the
    Letters of Request, including any privilege review; and an Ontario court would
    adjudicate any disputes regarding privilege claims.

[55]

I am not persuaded by the appellants
    submissions.

[56]

The decision to grant or refuse a foreign
    request is a matter of judicial discretion to which this court must give
    deference in the absence of a demonstrated error in principle by the court
    below, which would include a misapprehension of or failure to take into account
    the evidence, or a clearly wrong or unreasonable result:
Presbyterian
    Church
, at paras. 19 and 30;
Perlmutter
, at para. 26;
Young
    v. Tyco International of Canada Ltd.
, 2008 ONCA 709, 92 O.R. (3d) 161, at
    para. 27. I see no such error.

[57]

First, the application judges conclusion on solicitor-client
    privilege was not
obiter
. His reasons are clear that it was a discrete
    basis on which he dismissed the application as contrary to public policy: at
    paras. 134 and 143.

[58]

Second, the application judge rejected the
    appellants contention that he was not seeking documents protected by
    solicitor-client privilege as sophistry. I think that finding was apt: at
    para. 139.

[59]

As can be seen from the Subpoena attached to the
    Letters of Request, a copy of which can be found at Appendix A, the Letters
    of Request commanded the former lawyers for Ms. Van Den Hurk and Olivia to
    produce six categories of documents:

(a)

Four of the categories describe documents that Ontario law
    classifies as subject to solicitor-client privilege or presumptively so
    privileged:

·

Category 1: retainer agreements;

·

Category 2: dockets and billing information;

·

Category 3: information regarding the payment of
    legal fees; and

·

Category 4: information regarding the payment of
    expert fees.

(b)

The other two categories describe documents that might be subject to
    solicitor-client privilege or litigation privilege, depending upon the specific
    circumstances:

·

Category 5: the names, dates, email addresses,
    phone numbers and call logs of communications the lawyer had with persons other
    than the client in which the lawyer communicated in conjunction with the
    representation of the client; and

·

Category 6: documents, photographs or tangible
    evidence provided to the lawyer by a person other than the client in
    conjunction with the lawyers representation of the client.

[60]

The Letters of Request stipulate that the
    documents sought under Categories 2, 4, 5 and 6 may be redacted for
    attorney-client privileged/work product privileged information. As well, the
    Letters of Request would require the targeted lawyer to provide a list, or privilege
    log, of documents withheld as privileged, although the log would have to
    provide a general description of the subject matter to which the document
    relates.

[61]

No evidence was placed before the application
    judge that either of the two clients  Ms. Van Den Hurk or Olivia  had
    consented to the release of the documents or information sought.

[62]

On their face, the documents sought in
    Categories 1 through 4 of the subpoenas attached to the Letters are protected,
    or presumptively protected, by solicitor-client privilege:
Descôteaux et
    al. v. Mierzwinksi
, [1982] 1 S.C.R. 860, at pp. 892-93;
Maranda v.
    Richer
, 2003 SCC 67, [2003] 3 S.C.R. 193, at paras. 30-33; Sopinka,
    Lederman & Bryant
, The Law of Evidence in Canada
, 5th ed. (Toronto:
    LexisNexis, 2018), at §14.76-14.88.

[63]

Those in Categories 5 and 6 patently fall within
    the ambit of the principle of litigation privilege, as the subpoenas seek
    documents or information communicated to the target lawyers in conjunction with
    their consultations with or representations of Ms. Van Den Hurk or Olivia.

[64]

While litigation privilege usually ends when the
    litigation ends, it continues where litigants or related parties remain locked
    in what is essentially the same legal combat:
Blank v. Canada (Minister of
    Justice)
, 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 34. Related
    litigation includes separate proceedings that involve the same or related
    parties and arise from the same or a related cause of action, or proceedings
    that raise issues common to the initial action and share its essential purpose:
Blank,
at para. 39. The application judge wrote that Olivias
    withdrawal of her application for child support did not bring a ceasefire to
    the family battles. Instead, it appeared that the appellant sought to continue
    the hostilities by commencing his Florida Action: at para. 90. The history of
    the parties custody litigation provided support for that observation. As well,
    the history and character of the litigation strongly suggest that, for the
    purposes of determining whether litigation privilege continues to apply to the
    Categories 5 and 6 documents, the Florida Action would constitute litigation
    related to the terminated Ontario proceedings.

[65]

Accordingly, the Letters of Request seek facially
    privileged information and documents in the possession of the former lawyers
    for Olivia and Ms. Van Den Hurk related to the work the lawyers performed for
    those clients in respect of Ontario litigation, and in respect of which the
    clients have not waived privilege. In my view, those circumstances will
    inevitably give rise to disputes over any privilege claimed by the targeted
    lawyers on behalf of their former clients. Appellants counsel submits that
    those disputes can be determined by way of a motion before an Ontario court. With
    respect, I see no reason why Ontario courts should devote any more resources to
    the appellants custody-related litigation that this court ended in 2017.

[66]

I would make one further observation, although
    it is not strictly tied to the privilege issue. It is clear that in the Florida
    Action the appellant seeks to put in issue the validity of decisions of the Ontario
    courts, including this court, and he seeks to use the Letters of Request to
    obtain evidence to support his position: Verified Complaint, para. 32. In his
    discussion of the public policy factor, the application judge wrote that it
    would not be appropriate for a foreign court to support this collateral attack
    on the decisions of the domestic court and it would be inappropriate for the
    foreign court to rule on the probity of proceedings in Ontario: at para. 129.

[67]

I
    agree. For the Letters of Request to seek evidence that the appellant plainly
    intends to use to attack orders made by Ontario courts amounts to a potential
    infringement of Canadian sovereignty.

Conclusion on Issue 2(a)

[68]

For
    those reasons, I see no reversible error in the application judges exercise of
    his discretion to decline to enforce the Letters of Request on the ground of
    public policy because they would improperly interfere with solicitor-client
    privilege and confidentiality.

[69]

That
    is sufficient to dismiss the appeal. As I briefly explain below, I conclude
    that it is neither necessary nor appropriate to consider the other public
    policy ground dealt with by the application judge.

Issue 2(b): The other public policy ground

[70]

The
    application judge also dismissed the application on the basis that it would be
    contrary to public policy to enforce the Letters of Request in aid of a cause
    of action forbidden in Ontario. As the application judge pointed out, in
Frame v. Smith
, the Supreme Court of Canada refused to
    recognize a cause of action by a parent against a former spouse and others for
    interference with access to their children. The application judge determined
    that the appellant was using Florida law to advance a claim that Ontario law
    does not recognize. Drawing on case law concerning the recognition and
    enforcement of foreign judgments, the application judge concluded that the
    Letters of Request were based on a foreign law that is simply too offensive to
    local notions of what is just and reasonable, so they should not be enforced:
    at para. 132.

[71]

The
    appellant submits that in so finding the application judge misapplied the
    public policy factor applicable to letters of request, which focuses on whether
    the disclosure of the information sought would offend public policy, not on the
    underlying foreign litigation.

[72]

The
    appellant correctly states the governing jurisprudence. In
Presbyterian Church
, at para. 23, this court cited the
    decisions in
Zingre
and
Westinghouse
    Electric
for the principle that the public policy analysis must
    focus on the request, not on the underlying foreign litigation.

[73]

However,
    in the circumstance of this case, it is not necessary to consider the issue of
    whether an Ontario court can refuse to enforce letters of request on the ground
    that the foreign cause of action is not one recognized in Ontario. It is not
    necessary since I have found, at para. 68 above, that the application judge did
    not err in declining to enforce the Letters of Request on the other public
    policy ground  namely, because they would improperly interfere with
    solicitor-client privilege and confidentiality. That is a sufficient basis on
    which to dispose of the appeal.

[74]

It
    would be inappropriate to consider the issue as it has not been properly
    briefed. The application judge did not refer to, nor have the parties drawn our
    attention to, a case where an Ontario court refused to enforce letters of
    request on the ground that the foreign cause of action was not one recognized
    in Ontario. No legal text or journal commentary on the issue was filed on the
    appeal. Given that state of the record, consideration of the issue should await
    a case where it is determinative and has been properly briefed.

VI.     DISPOSITION

[75]

For
    the reasons set out above, I would dismiss the appeal.

[76]

By
    email dated October 30, 2020, the parties informed the court that they had
    reached an agreement on costs.

Released: SEP DEC 22 2020

David
    Brown J.A.

I
    agree. S.E. Pepall J.A.

I
    agree. K. van Rensburg J.A.



APPENDIX
    A

SUBPOENA FOR-PRODUCTION OF DOCUMENTS FROM NON-PARTY THE
    STATE OF FLORIDA

TO:
    Records Custodian

Lorne
    Glass

Glass
    and Associates

[]

YOU ARE
    HEREBY COMMANDED to appear at the Law Office of Gary Joseph, MacDonald &
    Partners, 155 University Ave. Suite 1700, Toronto, ON M5H 3B7, on or before 10
    days from the date of service of this Subpoena, and to have with you at that
    time and place the following documents relating to OLIVIA GLEGG:

1. All retainer agreements, engagement letters, contracts, or
    records of employment between Lorne Glass and/or Lorne Glass and Associates
    (Firm) showing the terms and conditions of your office's consultation and/or
    representation of OLIVIA GLEGG or any person acting on her behalf for all
    matters in which the Firm was retained to provide services to or on behalf of
    OLIVIA GLEGG, with respect to all legal matters including consulting services
    and any initial consultation, from the date of the initial contact through
    August 31, 2017.

2. With respect to the matter(s) referenced in paragraph numbered
    one (1) above, any and all records reflecting time entries, including but not
    limited to daily time records, of any and all attorneys, paralegals and
    assistants working on this matter, together with any and all billing memoranda
    and bills rendered by the Firm on this matter, from the date of the initial
    contact through August 31, 2017.
*** Attorney-Client Privileged/Work
    Product Privileged Information May Be Redacted ***

3. All records, including but not limited to payment records,
    receipts, credit card authorizations, cancelled checks, etc., evidencing
    payments or distributions made by or on behalf of OLIVIA GLEGG toward attorney
    fees (including any consultations), costs or retainers from the date of the
    initial contact through August 31, 2017.

4. All records, including but not limited to payment records,
    receipts, credit card authorizations, cancelled checks, etc., evidencing
    payments or distributions made by or on behalf of OLIVIA GLEGG toward
    professional and/or expert fees and costs rendered by third parties from the
    date of the initial contact through August 31, 2017.
***
    Attorney-Client Privileged/Work Product Privileged Information May Be Redacted
    ***

5. All
    records including names, dates, email addresses, phone numbers and call logs of
    communications with persons other than OLIVIA GLEGG in which you communicated
    in conjunction with your consultation and/or representation of OLIVIA GLEGG.
***Attorney-Client
    Privileged/Work Product Privileged Information May Be Redacted ***

6. All photographs, documents or tangible evidence provided to you
    by any person other than OLIVIA GLEGG in conjunction with your conjunction with
    your consultation and/or representation of OLIVIA GLEGG.
***
    Attorney-Client Privileged/Work Product Privileged Information May Be Redacted
    ***

7. In the event any document is withheld as privileged
    (attorney-client or work product), please provide a list ("privilege
    log") of the documents withheld in compliance with
Fla. R. Civ. P
.
    1.280(b)(5) for subsequent judicial review and state the following information
    with respect to each document withheld:

a.

The date appearing on the document and, if it
    has no date, the date or the approximate date on which it was prepared;

b.

The title, label, code number, or file number of
    the documents;

c. The name and current address of the
    person who signed the document or, if it is not signed, the name and current
    address of the person who prepared the document;

d. The name and current address of the
    person to whom the document was directed and the person or persons to whom any
    copies of the document were directed;

e. A general description of the subject
    matter to which the document relates;

f. The name and current address of the
    person having present possession, custody, or control of the document; and

g. The grounds on which the document is
    being withheld.

These
    items will be inspected and may be copied at that time. You will not be
    required to surrender the original items. You may comply with this subpoena by
    providing legible copies of the items to be produced to the attorney whose name
    appears below, on or before the scheduled date of production. You may condition
    the preparation of the copies upon the payment in advance of the reasonable
    cost of preparation. You may mail or deliver the copies to the attorney whose
    name appears on this subpoena and thereby eliminate your appearance at the time
    and place specified above. You have the right to object to the production
    pursuant to this subpoena at any time before production by giving written
    notice to the attorney whose name appears on this subpoena. This will not be a
    deposition; no testimony will be taken.

If you fail to (a) appear as specified; or (b) furnish the records
    instead of appearing as provided above; or (c) object to this subpoena, you may
    be in contempt of court. You are subpoenaed to appear by the attorney whose
    name appears below, and unless excused from this subpoena by this attorney or
    the court, you shall respond to this subpoena as directed.





[1]

Section
    60 of the
Evidence Act
, R.S.O. 1990, c. E.23
grants Ontario
    courts the discretion to enforce letters of request issued by a foreign court.
    The
Canada Evidence Act
, R.S.C. 1985, c. C-5 contains a similar
    provision, at s. 46.



[2]
Schedule C to the Factum of Lorne Glass, dated May 27, 2020, cogently
    demonstrates that most of the findings of fact made by the application judge
    were based on materials filed by the appellant.



[3]

Consolidated
    Practice Direction for Civil Actions, Applications, Motions and Procedural
    Matters in the Toronto Region
, s. 13;
Ontario Superior Court of Justice
    (Toronto Region) Civil Scheduling Unit Confirmation Form
, January 2020.



[4]
The
    six factors are: (1) the evidence sought is relevant; (2) the evidence sought
    is necessary for trial and will be adduced at trial, if admissible; (3) the
    evidence is not otherwise obtainable; (4) the order sought is not contrary to
    public policy; (5) the documents sought are identified with reasonable
    specificity; and (6) the order sought is not unduly burdensome, having in mind
    what the relevant witnesses would be required to do, and produce, were the
    action to be tried here.



[5]
Another
    example of a court relying upon Canadian blocking legislation or government
    policy is the decision of the Superior Court of Justice in
Morgan,
    Lewis & Bockius LLP v. Gauthier
(2006), 82 O.R. (3d) 189 (S.C.). There,
    the court refused to give full effect to a letter of request from a
    Pennsylvania court in part for reasons of public policy because the production
    sought related to breaches by a Canadian company of American legislation
    prohibiting trade with Cuba. The court noted that Canadian public policy
    opposed the extra-territorial application of the American embargo legislation
    and a Canadian government order prohibited Canadians from complying with the
    United States law: at para. 74. In the result, the parties agreed upon a
    reduced scope of documentary production that satisfied the courts concerns: at
    para. 87.


