



COURT OF APPEAL FOR ONTARIO

CITATION: Gefen v. Gaertner, 2017 ONCA 66

DATE: 20170124

DOCKET: C62417

Doherty, Weiler and Roberts JJ.A.

BETWEEN

Henia Gefen in her Personal Capacity and as
    Estate Trustee of the Estate of Elias Gefen

Plaintiff (Appellant)

and

Arie Gaertner, Miller, Canfield, Paddock and
    Stone LLP, the Jewish Home for the Aged, Baycrest Hospital, Baycrest Centre for
    Geriatric Care, Yehuda Gefen and Harry Gefen

Defendants

and

Ronald
    Rutman, Estate Trustee during Litigation for the Estate of Elias Gefen,
    Deceased

Respondent

Ronald Moldaver Q.C., for the appellant

Jordan D. Oelbaum and Robin M. Spurr, for the respondent

Tanisha Tulloch, for non-party Nestor Wolicki

Heard:  January 23, 2017

On appeal from the order of Justice Conway of the
    Superior Court of Justice, dated June 17, 2016.

APPEAL BOOK ENDORSEMENT

[1]

There was no objection to the order now
    under appeal by the parties who attended on the motion.  The appellant, although
    properly served, did not attend before Conway J.

[2]

There are ongoing proceedings before
    the Superior Court in respect of the production of the materials referred to in
    the Newbould and Conway orders.

[3]

The respondents agree that it is open
    to Conway J. to make any order she deems appropriate in respect of privilege. 
    To the extent that para. 3 of her order appears to determine any of those
    issues, Conway J. can vary that order if appropriate.

[4]

In our view, these issues are best
    litigated before Conway J. in the context of the ongoing proceeding.  She is in
    a much better position than this court to tailor an order to the specific
    circumstances and issues relating to the production orders and the protection
    of any privileges found to exist.

[5]

The appeal is dismissed.

[6]

The respondent, Rutman, as estate
    trustee during litigation, is entitled to costs in the amount of $7,500, all
    in.  The respondent, Wolicki, is entitled to costs in the amount of $1,000,
    all in.


