Lawyers Lorne Silver & Jessica Zagar gave directly opposing evidence to the court that sent Donald Best to jail. Whose version was true?

“Lawyer Jessica Zagar, as an Officer of the Court, swore that Lorne Silver personally attended at two law firms and selected the documents. Silver, as an Officer of the Court, formally stated on the record that he did not attend at the law firms or select the documents.”

Cassels Brock & Blackwell lawyer Jessica Zagar swears that her fellow senior lawyer Lorne Silver attended at two law offices on two separate dates and selected certain documents to be used as evidence before the Ontario Superior Court. Mr. Silver denies doing so, and he officially denied it on the record during Contempt of Court hearings against plaintiff Donald Best.

What is the truth? Did lawyer Lorne Silver attend the law offices and select the documents or not?

Why might Mr. Silver falsely deny attending the law offices and selecting the documents?

Former Toronto Police Sergeant Donald Best in his Statement of Claim (1.3mb PDF) filed in Barrie, Ontario Canada, alleges that on January 15, 2010, he was convicted of ‘Civil contempt of Court’ in absentia (in his absence) and sentenced to prison on the basis of false evidence presented to the Court by lawyers, including defendants Gerald Ranking and Lorne Silver. The Statement of Claim also alleges that after his conviction, the defendants continued placing false and misleading evidence and information before the courts, and continued with other misconduct and crimes against the Plaintiff.

This article examines only one of the many alleged wrongdoings.

This specific alleged wrongdoing involves two different versions of evidence placed before the court concerning how certain privileged documents were selected as evidence from the files of Orillia law firm Crawford, McLean, Anderson, Duncan LLP.

None of the allegations has yet been proven in a court of law, and to our knowledge none of the defendants has filed a Statement of Defence. Visitors to this website are encouraged to examine the legal documents and other evidence posted here, to do independent research and to make up their own minds about the civil lawsuit known as ‘Donald Best v. Gerald Ranking et al’. (Superior Court of Justice, Central East Region: Barrie, Court File No. 14-0815)

According to legal documents filed in Ontario court (available for download at SolidCase.CA), Cassels Brock & Blackwell lawyer Jessica Zagar swore an affidavit on June 7, 2010 stating that Cassels senior lawyer Lorne S. Silver attended at two law offices in May 2010 and selected documents from the files of law firm Crawford, McLean, Anderson, Duncan LLP (CMAD). that were subsequently placed as evidence before Ontario Superior Court Justice J. Bryan Shaughnessy.

However, during a January 11, 2013 cross-examination of Donald Best, Mr. Silver denied attending at the law offices and selecting the documents in question.

What is the truth? Judge for yourself.

The sworn affidavit of Jessica Zagar states in part:   

5. On Thursday, May 13, 2010, Silver, Emmeline Morse (“Morse”), an associate at Fasken DuMoulin Martineau LLP and Adria Leung (“Leung”), an articling student at Miller Thomson LLP, attended CMAD’s Orillia office to inspect the physical Files. I am advised by Silver that Silver, Morse and Leung identified the documents requested to be photocopied and delivered (the “Documents”). Attached hereto and marked as Exhibit “B” is an email, from Christine Barbison on behalf of Lorne Silver, to lan Epstein and Cecilia Hoover, counsel for CMAD, listing those Documents identified for photocopying and delivery.

6. I am advised by Silver and verily believe that (Best’s lawyer) had located two additional boxes of documents pertaining to the matter. These documents were available for inspection at the firm of Kramer Henderson Sidlofsky LLP (“Kramer Henderson”).

7. On May 25, 2010, Silver and Morse attended Kramer Henderson to review the two additional boxes of documents and to identify the documents requested to be photocopied and delivered. Cecilia Hoover, Epstein’s colleague (“Hoover”) and an associate from Paliare Roland Rosenberg Rothstein LLP were also in attendance.

June 7, 2010 Affidavit of Jessica Zagar (PDF 2mb)

In the attached exhibits to Jessica Zagar’s affidavit, there are emails between Lorne Silver and other lawyers that appear to corroborate Ms. Zagar’s sworn evidence that Lorne Silver attended at law offices and selected the documents in question. For instance, Exhibit B is a May 14, 2010 email from Lorne Silver to lawyer Ian S. Epstein stating (in part):

Further to our telephone conversation yesterday afternoon, I confirm that Emmeline Morse of Faskens, Adria of Miller Thomson and I attended in Orillia and conducted an inspection of the physical files referenced above. Ms. Stacey Ball was made available to us to assist in our review of the files and we greatly appreciated her assistance.

The agreed upon protocol in respect of the inspection of physical files was for us to identify (and mark with post-it notes) those documents which we wanted copies of and that same would be made and delivered, at our expense. Accordingly, following below is a description of the documents which Cassels and Faskens requested be photocopied. Adria of Miller Thomson used a different colour of post-it notes and I leave it to her to follow-up on the copying and delivery of same to her.

Lorne Silver’s denial on the court record: January 11, 2013

The official court transcript of the January 11, 2013 cross-examination of Donald Best shows that several times Mr. Best asked Lorne Silver about the ‘Zagar’ documents and then accused Mr. Silver of selecting and distributing them. The ‘Zagar’ documents had become an issue in Best’s Contempt of Court hearing.

Read the entire official transcript for yourself, but initially Mr. Silver appears to deflect questions or not answer Mr. Best about the issue. But then on page 212 starting at line 22, lawyer Lorne S. Silver solidly denies attending at the law offices and selecting the documents in question:

Best: You chose the documents from his file.

Silver: take it up with (Best’s lawyer) or his lawyers. They consented.

Best: Who chose the files?

Silver: The files were all of (Best’s lawyer’s) files that were produced in consequence of the review of his files being conducted for the costs thing.

Best: You were there for the review. Did you go to his place and do that?

Silver: No, of course not.

Best: Did Mr. Ranking

Silver: I doubt it. I think it was

Ranking: I’m not answering any questions. This is so wholly inappropriate and a continued waste of time.

Best: Sir.

Silver: Sir

Best: It’s not a waste of time for people whose lives have been ruined.

Ranking: I don’t accept that anyone’s lives have been ruined.

Page 212, January 11, 2013 cross-examination transcript (xx mb)

Full January 11, 2013 cross-examination transcript (xx mb)

Why might Mr. Silver have falsely denied attending the law offices and selecting the documents? What would he gain?

Cassels Brock & Blackwell lawyers Lorne Silver and Jessica Zagar each provided directly opposing / conflicting evidence about how tens of thousands of privileged legal documents attached to Zagar’s affidavit were selected from law firm Crawford, McLean, Anderson, Duncan LLP’s files.

Zagar, as an Officer of the Court, swore that Lorne Silver personally attended at two law firms and selected the documents. Silver, as an Officer of the Court, formally stated on the record that he did not attend at the law firms or select the documents.

What could possibly have been the motivation for a senior Officer of the Court like Mr. Silver to allegedly make a false statement about his actions in relation to the Zagar documents? Could Mr. Silver have been attempting to distance himself from wrongdoing in relation to the Zagar documents?

According to affidavits and other legal documents filed in the Ontario courts by Donald Best, the ‘Zagar’ documents are privileged legal papers from the files of law firm Crawford, McLean, Anderson, Duncan LLP that were submitted to the court by Lorne Silver on June 10, 2010, after the Nelson Barbados Group Ltd. case had been settled.

According to Mr. Best’s lawsuit there was no legitimate reason for Mr. Silver to place the documents into the public domain through the courts or via other means. Mr. Silver admitted in official transcripts to having distributed unredacted copies of the ‘Zagar’ documents to his clients.

Further, Donald Best alleges in sworn and filed court documents that the ‘Zagar’ documents contained many privileged legal documents that had nothing to do with Mr. Best, his company or the lawsuit. As an example, the ‘Zagar’ documents contain medical records of an elderly family member of one of Mr. Best’s lawyers. Other documents contained confidential information about financial disputes, business and divorce cases of persons in Florida who have nothing to do with Mr. Best, but are or were clients of his lawyer at the time.

These documents had nothing to do with Mr. Best or his legal matters, but were selected and distributed to the public by Mr. Silver, according to court documents filed by Mr. Best.

Further, sworn affidavits filed by Mr. Best state that the ‘Zagar’ documents contain unredacted ‘Identity Information’ as defined by the Criminal Code of Canada Section 402.1 such as “numbers of passport, bank account, driver’s license, username, computer password, address history, name and date of birth.”

On page 38 of Donald Best’s affidavit sworn January 10, 2013, Mr. Best states:

As explained herein, Mr. Ranking, Mr. Silver, Mr. Roman and their law firms committed a massive violation of lawyer-client privilege by selecting and distributing to the public a collection of over 100,000 unredacted privileged documents from the legal files of my previous lawyer… In all the circumstances there is no conclusion possible other than this was a deliberate and malicious act, designed to intimidate and attack my witnesses, my family members, my previous lawyer and me.

Further, the deliberate release of privileged information and Identity Information for dozens of (my previous lawyer’s) legal clients who had not the remotest connection with me or the Nelson Barbados Group Ltd. lawsuit was designed to ruin (my previous lawyer’s) business and reputation. What other reason can there be for Mr. Silver, Mr. Ranking, Mr. Roman and their law firms to release and distribute this privileged information about dozens of (my lawyer’s) other clients and other non-involved people and companies into the public domain?

What could have been lawyer Lorne Silver’s motivation to falsely claim on the court record that he did not attend at the law firms to select the privileged documents in question?

Please examine the evidence here at DonaldBest.CA and elsewhere and let us know your thoughts.

NOTE: It will be a few days for us to redact the relevant documents and post them here. Thanks for your patience!