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Lotto dispute ensnares lawyer

|Written By Michael McKiernan

A London, Ont., lawyer has found himself caught in the aftermath of a divorced couple’s high-profile dispute over a $30-million lottery jackpot long after they settled their matrimonial litigation.

Alfred Mamo finds himself battling on two fronts long after Nynna Ionson and Raymond Sobeski resolved their differences.

Alfred Mamo of McKenzie Lake Lawyers LLP represented Nynna Ionson as she sought a share of Raymond Sobeski’s winnings. Sobeski had obtained an uncontested divorce from Ionson in February 2004 without telling her about his windfall. Two months later, he turned up at Ontario Lottery and Gaming Corp.

headquarters to collect the $30-million Super 7 jackpot on a ticket purchased in April 2003.

In 2006, Sobeski sued Mamo for defamation related to comments he made to the media during the high-profile case. The defamation action went dormant after Mamo filed a defence in May of that year.

Sobeski and Ionson eventually settled their dispute ahead of a trial scheduled for January 2009 on terms that remain confidential. But a short time later, Ionson moved to have Mamo’s legal bills assessed. Around the same time, Sobeski revived his defamation suit.

Mamo was then denied the opportunity to use files from the matrimonial dispute in his defence of the defamation action when Ionson refused to waive her solicitor-client privilege, an issue that was before the court last month.

In ruling on the matter, Ontario Superior Court Justice Paul Perell rejected Mamo’s attempt to get around Ionson’s refusal when he declined to order that the deemed undertaking shouldn’t apply to the matrimonial documents.

According to Perell’s decision, Ionson’s challenge of Mamo’s fees and Sobeski’s revival of his dormant defamation action came only after the former spouses had reconciled and resumed their relationship.

However, Sobeski’s lawyer, Brian Shiller of Ruby Shiller Chan, denies his client is back together with Ionson. “It’s not accurate,” he says, adding he’s unable to comment on what contact there has been between the pair since their settlement.

According to Shiller, Sobeski deliberately waited before continuing with the defamation action that claims damages of $1.3 million against Mamo. “It wasn’t a question of reviving it,” he says.

“Mr. Sobeski did not want to be seen as seeking an advantage in the matrimonial litigation by suing Mr. Mamo. So the lawsuit was held in abeyance until the matrimonial litigation was complete.”

Mamo declined to comment on the case, and Ionson couldn’t be reached.

Sobeski and Ionson, a former stripper, met in 1994 at a club she worked at in Woodstock, Ont. Ionson had four children from previous relationships, and Sobeski had two of his own. They married four years later but never lived together.

During the matrimonial action, Sobeski denied there was ever a genuine marital relationship, arguing the marriage had ended within days when Ionson went back on a promise to sign a marriage contract. But the relationship did continue as a “purely sexual arrangement,” he said in court documents.

According to documents filed by Ionson, one sexual encounter took place at a Woodstock hotel on April 1, 2004, the very day Sobeski claimed his winnings without her knowledge. A month later, she had obtained a court order freezing half of his assets until determination of the case.

In December 2005, ahead of a hearing for a temporary support claim by Ionson, the former couple traded accusations in affidavits. Sobeski claimed Ionson had physically and verbally abused him in incidents before their divorce. She in turn said the marital breakdown had left her “physically and psychologically unable to work” or support her children.

Ionson had asked for a lump-sum payment of $262,000 plus $9,000 per month in order to support herself while she fought the case. The parties eventually reached a settlement on the issue before the judge could rule, but during the media firestorm, Mamo had given an interview to The Globe and Mail.

“There are two versions of what happened here. By Wednesday, people will understand that Nynna’s is the accurate one. And they’ll see that his is a perjured account,” Mamo said, according to Perell’s decision.

None of the allegations against Mamo, nor the perjury claim, have been proven in court.

Four months later in March 2006, Sobeski sued Mamo for defamation. Mamo admits to making the comments but pleaded that his statements were true and had the protection of qualified privilege.

In his defence, Mamo included charts that allegedly showed inconsistencies in Sobeski’s testimony. In the meantime, he wants to use documents in Ionson’s file to back up his case. They include document briefs, offers to settle, recorded conversations, and  transcripts of interviews with both Ionson and Sobeski.

Ionson denied Mamo’s request to waive privilege in late 2009 despite the fact that he only wants documents disclosed to Sobeski during the matrimonial litigation. In response, Mamo moved for an order that the deemed undertaking shouldn’t apply to the documents.

According to Perell, the request was unusual because the rule is designed to prevent parties and their lawyers from using the opposing side’s documents in another action rather than their own client’s files.

“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,” Perell wrote. He also noted Ionson wasn’t a party to the defamation action and was entitled to privacy.

As Perell pointed out, the situation put Mamo “between a rock and a hard place” because of the conflict between his obligation to disclose relevant documents in his possession and his professional duties to his former client.

But he did provide Mamo with what he called an “escape route” given that many of the documents he was requesting were filed with the court and therefore weren’t covered by the deemed undertaking.

For those still covered, Perell said Mamo could exploit the distinction between documents in his possession, which he must disclose and produce for inspection, and those formerly in his possession that need only to be disclosed.

“The escape route for Mr. Mamo is for him to return Ms. Ionson’s documents and property to her,” Perell wrote. “While he must disclose her documents, he cannot and he need not produce them for Mr. Sobeski.”

Mamo could then call Ionson as a witness or move for an order for production by a non-party, Perell said.

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