The Ontario Court of Appeal has awarded substantial indemnity costs in ruling against a man who challenged a judge’s finding that he was a vexatious litigant in relation to lawsuits he has launched against several lawyers and law firms over the years.

“In our view, the respondents on appeal are entitled to substantial indemnity costs,” wrote Justice John Laskin in today’s ruling in Teplitsky Colson LLP v. Malamas that ordered appellant William Malamas to pay $63,861 in costs.

“Mr. Malamas has persisted in his groundless allegations of fraud, breach of fiduciary duty, and other nefarious conduct by these parties. The nature of his allegations justifies substantial indemnity costs.”

In an article today, Law Times reported on the long-standing litigation launched by Malamas over a dispute related to a Danforth Avenue property in Toronto he was the landlord of. The property had the National Bank of Greece as its tenant.In his developer days, Malamas got into a dispute with the occupant bank and sued it for rent arrears and damages for breach of the lease.In the coming years, he sued virtually all of the lawyers who represented him in that litigation and other cases he came to be involved in. According to court documents, Malamas argues the lawyers “developed an attitude of increasing malice” toward him during their representation of him.

The law firms named in various lawsuits over the years, some of which no longer exist, include McCarthy Tétrault LLP, Toome Laar & Bell, Raphael Professional Corp., Goodman and Carr LLP, Gardiner Roberts LLP, and Hodder Solicitors, according to a ruling last year in Teplitsky Colson LLP v. William Malamas.

The June 2012 court decision that declared Malamas a vexatious litigant notes he sued a total of 16 lawyers over a span of six years. That number doesn’t include the lawyers who were once the owners of a building adjacent to his Danforth Avenue property.

Last week, Malamas went to the appeal court to challenge the vexatious litigant finding. Among other things, he argued that William O’Hara, counsel for Teplitsky Colson, didn’t have instructions from all 26 parties, which included corporations, to write the affidavit. But in today’s decision, the appeal court rejected that ground. “To save time and expense, the other applicants agreed that he could represent them as their agent and make submissions on their behalf,” Laskin wrote of O’Hara.

“They also agreed that a single omnibus application would be brought on behalf of all the applicants. The application judge recognized that this was a sensible course of action. In his procedural order No. 7, he confirmed that the application was brought with his prior approval.”

Malamas also argued Superior Court Justice Frank Newbould didn’t have authority to conduct the vexatious litigant application; there were inconsistencies in his reasons; and there was no admissible affidavit evidence in support of the application. The appeal court rejected all of those grounds as well.

Malamas’ long saga dates back to the 1980s. He says he has spent more than $1 million in legal costs and argues the system has failed him. While he suggests lawyers are abusing the court process, Ray Thapar, counsel for the parties that brought the vexatious litigant application, notes he first started doing work on the case as an articling student 13 years ago. He describes the long-standing case as being the result of “an overwhelming obsession with conspiracy."  

Peter Wardle has refused to recuse himself from the panel hearing Joe Groia’s appeal.

Toronto lawyer Joe Groia is seeking to have Law Society of Upper Canada Bencher Peter Wardle removed from the panel hearing his appeal over an alleged bias related to Wardle’s firm’s actions on behalf of the Ontario Securities Commission and the LSUC.

“There is a reasonable apprehension of bias arising from the fact that partners and associates at Mr. Wardle’s firm, Wardle Daley Bernstein LLP, regularly represent the Ontario Securities Commission as prosecutors and are closely involved in proceedings at the OSC and that Wardle LLP also regularly represents the Law Society of Upper Canada as prosecutors in discipline proceedings,” wrote Groia’s counsel, Earl Cherniak, in a June 5 notice of motion.

Groia is gearing up for his appeal of professional misconduct findings against him last year in relation to his courtroom tactics on behalf of John Felderhof on criminal charges stemming from the Bre-X Minerals Ltd. fiasco. The LSUC has been taking Groia to task for courtroom incivility as he aggressively challenged OSC prosecutors during his defence of Felderhof. A hearing panel recently suspended Groia for two months and ordered him to pay costs of $246,960. But Groia is appealing both the merits decision and the penalty with a hearing scheduled for Sept. 9 and 10. The penalty is on hold pending the appeal, and Wardle is one of five LSUC benchers assigned to hear the matter.

In his notice, Groia suggests the LSUC’s “prosecution of the lawyer has been and remains of continued interest to the OSC.” The notice then notes Wardle Daley Bernstein’s work as outside counsel for the OSC, including prosecuting cases on its behalf. In addition, an associate at Wardle’s firm reportedly assisted with the Bre-X prosecution, according to the notice of motion. “Given these circumstances, there can be no doubt that Wardle LLP and its partners and associates have a great deal of knowledge about the parties involved in the proceedings and an ongoing interest in the litigation and the result,” wrote Cherniak.

“Whatever Mr. Wardle’s own involvement may have been, a reasonable person properly informed would conclude that his firm’s connection to its client, the OSC, is deep, current, and multilayered. As the Wardle LLP firm owes duties of loyalty to its client, the OSC, this places Mr. Wardle in a clear and compelling conflict of interest.”

Besides the OSC issue, the notice also raises concerns about Wardle’s firm’s representation of the LSUC at tribunal hearings and in court. “A reasonable person would be concerned that the firm’s duty of loyalty to both clients could influence Mr. Wardle’s views on this appeal,” wrote Cherniak.

The LSUC has scheduled a hearing on the recusal motion for July 3. Wardle has refused to recuse himself, the notice of motion notes. Legal Feeds was unable to reach Wardle for comment by press time.

Continued global expansion in Latin America, including places like Brazil, remains on the agenda even as the Norton Rose Group’s merger with Fulbright & Jaworski LLP took effect yesterday.

That’s according to the managing partner of the group’s newly merged Canadian entity, Norton Rose Fulbright Canada LLP, as it added a U.S. presence through Fulbright & Jaworski’s 750 lawyers. While Fulbright & Jaworski already has substantial business in Latin America, it didn’t have offices there, says John Coleman of Norton Rose Fulbright Canada. Norton Rose, of course, already had a physical presence in places like Venezuela and the newly merged firm hopes to add to that, he says in detailing “another piece of the puzzle coming together” with the new U.S. footprint.

The latest move caps a series of changes expanding Norton Rose’s global reach, including the addition of the former Ogilvy Renault LLP and Macleod Dixon LLP in Canada in 2011 and 2012. The merger with Fulbright & Jaworski gives the firm 3,800 lawyers with offices in more than 50 cities around the world. The expansion, according to Coleman, is a response to client demands.

“These mergers aren’t done because managing partners enjoy doing these things,” he says, noting the globalized nature of business means companies are looking for firms that can help them wherever they happen to be.

In terms of concrete changes, the expanded firm’s executive committee will included an additional Canadian member, Jane Caskey of the firm’s Toronto office. The other Canadians on the 20-member global executive committee are Coleman, Bill Tuer of Calgary, and Toronto’s Michael Lang.

Other changes include a focus on global regulation and investigations given the added strength in that area that Fulbright & Jaworski brings, says Coleman. Companies, he notes, are increasingly looking for advice on what they can and can’t do around the world in terms of things like antitrust, tax, anticorruption, and labour matters, and the focus on global regulation and investigations will bring together existing practice teams involved in that area.

“This gives us a leg up in that area of practice,” says Coleman.

In addition, health care will be a key area as the firm combines Fulbright & Jaworski’s strengths with Norton Rose’s pharmaceutical and life sciences practices, he adds.

“It just adds another dimension,” he says. “We’ll be able to offer more to our clients around the world.”

The firms first announced the marriage last November. With the merger, it’s touting its key industry strengths in the areas of financial institutions; energy; infrastructure, mining, and commodities; transport; technology and innovation; and life sciences and health care.

“We have an exciting future ahead,” said Peter Martyr, global chief executive of Norton Rose Fulbright.

With the trial courts weighed down by heavy workloads, a Supreme Court of Canada ruling last Friday judges copying counsel submissions in their reasons will likely give added licence to judges to take shortcuts, says a Toronto lawyer.

With heavy workloads bogging them down, the SCC ruling will likely give added licence to judges to take shortcuts. (Image: Shutterstock)

“My sense is you’re going to see much more of the direct cutting and pasting because of this,” says Toronto lawyer and legal commentator James Morton.

The comments follow Friday’s ruling in a $4-million medical negligence case. Noting the “time-honoured tradition of judgment writing,” the Supreme Court allowed an appeal of a B.C. Court of Appeal ruling that dismissed a damages award over concerns the trial judge went too far in copying submissions from the plaintiffs.

“Judges are busy. A heavy flow of work passes through the courts,” Chief Justice Beverley McLachlin wrote on behalf of a unanimous court in Cojocaru v. British Columbia Women’s Hospital and Health Care.

“In an ideal world, one might dream of judges recasting each proposition, principle and fact scenario before them in their own finely crafted prose,” she added. “In reality, courts have recognized that copying is acceptable, and does not, without more, require the judge’s decision to set aside.”

The case involved a trial award of $4 million after Eric Cojocaru suffered brain damage during birth at the B.C. hospital. Of the 368 paragraphs in B.C. Supreme Court Justice Joel Groves’ 2009 ruling, only 47 were predominantly in his own words. He copied the remaining paragraphs from the plaintiff’s submissions, McLachlin noted. Noting concerns with the copying, the B.C. Court of Appeal ordered a new trial.

For McLachlin, the key issue was whether trial judges put their mind to the facts and issues in the case regardless of the copying. In Cojocaru, she found the defendants had failed to show that Groves hadn’t done so.

Taking full account of the complexity of the case, and accepting that it would have been preferable for the trial judge to discuss the facts and issues in his own words, I cannot conclude that the trial judge failed to consider the issues and make an independent assessment on them. On the contrary, the fact that he rejected some of the plaintiffs’ key submissions demonstrates that he considered the issues independently and impartially.

While allowing for copying and pasting, the top court was clear that doing so isn’t a best practice. Morton says he thinks judges should at least make reference to the fact they’re drawing from a party’s submissions. But McLachlin found judges don’t necessarily have to attribute their materials as “judicial writing is highly derivative and copying a party’s submissions without attribution is a widely accepted practice. The considerations that require attribution in academic, artistic and scientific spheres do not apply to reasons for judgment. The judge is not expected to be original.”

While the Cojocaru ruling does give judges some leeway, Morton suggests judges need to be careful and should be mindful of what’s at stake for parties involved in “once-in-a-lifetime matters” who are likely to parse decisions carefully. Nevertheless, he’s not optimistic the best practices will take hold and says the threshold for setting a judgment aside based on copying is a high one.

“I have a feeling that the best practices will fall by the wayside when the judge is facing five reserved decisions by next Wednesday,” he says.

While the court reinstated the award after considering the copying issue, it dismissed the action against a nurse, the hospital, and two doctors. It upheld the judgment in part against Dr. Jenise Yu.

Dr. K. Ansarian Dentistry Professional Corp. v. Dr. A. Mohajeri Dentistry Professional Corp., Ontario Superior Court

Two dentists who shared a space "cannot stand each other" anymore and no longer want to work together. But their business arrangement stipulates they can only renew the lease on the common premises as the "tenant," which is both of their professional corporations together. One dentist refuses to do that, meaning they'll both be out if they can't work out a deal, while neither will let the other negotiate separately with the landlord to extend the lease. As a result, they've been engaging in legal wrangling resulting in stacks of paper up to a metre in height to find some way to avoid losing their place of business.

The Ontario Court of Appeal has dealt a blow to the notion that polluters are responsible for fixing their messes. The court rejected a municipality’s bid to challenge an order putting it on the hook for someone else’s spill by calling evidence that another party was at fault.

The Ontario Court of Appeal has dealt a blow to the notion that polluters are responsible for fixing their messes. (Photo: Shutterstock)

“Evidence of the fault of others says nothing about how the environment would be protected and the legislative objective served if the director’s order were revoked,” wrote Justice Stephen Goudge in Kawartha Lakes (City) v. Ontario (Environment) on Friday.

“Indeed, by inviting the tribunal into a fault finding exercise, permitting the evidence might even impede answering the question in the timely way required by that legislative objective.”

Environmental lawyers have been closely watching the case since the Environmental Review Tribunal upheld the Ministry of the Environment’s order under the Environmental Protection Act directing the city to remediate and prevent any further discharge of furnace oil on its property. But the 2008 spill happened on the property of Wayne and Liana Gendron during a delivery of fuel oil. The oil migrated onto the city’s property and into Sturgeon Lake. While the ministry first issued an order to the Gendrons, they had run out of money to do offsite remediation by March 2009.

The city then unsuccessfully sought to challenge the ministry director’s order at the tribunal and later the Divisional Court. All parties agreed the city wasn’t at fault, a fact that made the case an important one for environmental lawyers accustomed to the notion of making polluters fix their messes.

“Just picking on someone innocent and making them pay for it . . . it’s scary,” says Toronto environmental lawyer Dianne Saxe, who notes the rulings make it more difficult to advise clients affected by a neighbouring spill who may now question whether they should report an event to the ministry.

Despite the concerns, the appeal court emphasized the overriding objective of protecting the environment.

“I agree with the tribunal and the Divisional Court that evidence that others were at fault for the spill is irrelevant to whether the order against the appellant should be revoked,” wrote Goudge. “That order is a no fault order. It is not premised on a finding of fault on the part of the appellant but on the need to serve the environmental protection objective of the legislation.

“The tribunal had to determine whether revoking the director’s order would serve that objective. Deciding whether others are at fault for the spill is of no assistance in answering that question.”

Rulings throughout the case have faulted the city for blaming other parties without offering a solution for the pollution should it succeed in getting the order revoked. But for Saxe, that’s exactly what the city was trying to do in arguing there were other parties involved that could fix the problem.

“There’s no effective right of appeal,” she says in summarizing the implications of the case.

In the end, the appeal court dismissed the city’s appeal but made no order as to costs. Of course, the ruling doesn’t stop the city from trying to recover its costs through other means. As Goudge noted, the city has made use of s. 100.1 of the act that allows a party subject to a no-fault order to seek to recover its costs.

That matter involving the Gendrons, Thompson Fuels Ltd., and the Technical Standards and Safety Authority is ongoing, according to Goudge. But according to Saxe, success in recovering costs is very rare.

“Almost always they don’t get it,” she says.

The University of Ottawa named Canadian Civil Liberties Association general counsel Nathalie Des Rosiers as the new dean of its common law program.

Nathalie Des Rosiers will join the University of Ottawa’s common law faculty as dean on July 1.

Caroline Milliard, manager of media relations at the university, confirmed Des Rosier’s appointment this morning. The five-year appointment is effective July 1, says Milliard.

“I’m very pleased and honoured by the appointment,” Des Rosiers tells Legal Feeds. “It’s a great faculty,” she adds, noting she aims to “makes sure it continues to shine as it has.”

Des Rosiers will fill the vacancy created by the upcoming departure of common law faculty dean Bruce Feldthusen.

The incoming dean, of course, is no stranger the University of Ottawa. Currently a professor in the civil law section, she was dean of the civil law program from  2004 to 2008.

After leaving that position, she moved to the CCLA to replace the departing Alan Borovoy, who retired from the organization after 40 years of leading some of Canada’s most important social battles. Since then, she has found herself taking high-profile roles in many of the current social battles, including the widespread concerns over police actions during the G20 summit in Toronto in 2010. Throughout the controversy, the CCLA pushed strongly for a single public inquiry into police actions during the summit.

The CCLA also made a significant mark last year with a report calling for changes in how police keep records of their interactions with people that don’t result in an arrest. Among other things, the report called for the destruction of non-conviction records given the concerns about the effect on the presumption of innocence.

Des Rosiers says there’s no replacement yet for her CCLA role yet but says she expects the organization to launch a competition for the position soon.

“It’s a great job,” she says, noting “it was a very difficult decision” to leave a “very useful, very needed” organization.

Besides the University of Ottawa and CCLA postings, Des Rosiers was president of the Law Commission of Canada from 2000 to 2004 and taught at the University of Western Ontario prior to that. During her career, she has received a number of honours, including the medal of the Law Society of Upper Canada in 1999. For the past two years, Canadian Lawyer has named her one of Canada’s 25 most influential lawyers. l

Feldthusen leaves the dean’s post after more than a decade in the role.

Smith v. Cataraqui Cemetery Co., Ontario Superior Court

Can the heirs of a family that bought a massive plot on a cemetery in the 1860s get buried there now? The cemetery said no, saying they'd first have to go through all potential heirs (thousands of them) to see who gets the plot. The court said that was ridiculous.

---

One of Ontario’s most prolific judges in class actions cases is moving to the Ontario Court of Appeal.

Ontario Superior Court Justice George Strathy, one of a handful of judges to regularly tackle the complex and often drawn-out area of class actions, replaces appeal court Justice Russell Juriansz, who became a supernumerary judge on March 31.

Strathy, who joined the Superior Court bench in 2007, had a long career as a practising lawyer in civil litigation as well as transportation, insurance, environmental, and maritime law. He had earlier been a partner at Strathy & Isaacs, Fasken Campbell Godfrey, and MacKinnon McTaggart.

Moving into Strathy’s spot at the Superior Court is Stephen Firestone. As a lawyer, Firestone primarily dealt with civil litigation focusing on personal injury, accident benefits, and professional negligence. He has been a partner at Lackman Firestone since 1995 and earlier worked as a lawyer at Iacono Brown and Sommers & Roth.

Also joining the Superior Court bench is Ontario Court Justice Steve Coroza. Currently a judge in St. Catharines, Ont., Coroza will take his Superior Court position in Brampton, Ont., on July 8. He replaces Justice Nancy Mossip, who becomes a supernumerary judge on July 8. Coroza became a judge in 2009 following an 11-year stint as senior counsel with the Public Prosecution Service of Canada and an earlier position as staff duty counsel in Toronto.

The Ontario government also announced the appointment to the Ontario Court of Justice on Friday. Kathleen Baker will preside in Brantford, Ont., as of May 8. Baker, who has worked in a number of legal counsel roles for several children’s aid societies, has more recently been in private practice dealing with child protection, custody, access, support, and property issues.

Besides the Ontario appointments, the federal government named a new Quebec Court of Appeal judge on Friday. Superior Court Justice Manon Savard fills the vacancy caused by the departure of Justice Richard Wagner to the Supreme Court of Canada last year. Savard, who has been a judge since 2009, had an earlier career as a lawyer practising labour and employment, civil, and administrative law at the former Ogilvy Renault LLP.

The final appointment announced Friday was of Glennys McVeigh to the Federal Court. A senior counsel with the Public Prosecution Service of Canada in Saskatoon, McVeigh has been with the federal government since 1998. She fills a new position on the court.

The Criminal Lawyers’ Association is slamming a Law Society of Upper Canada hearing panel decision last week suspending securities lawyer Joe Groia for two months and leaving him on the hook for almost $250,000 in costs for his conduct during his defence of Bre-X Minerals Ltd. geologist John Felderhof.

Joe Groia is appealing the LSUC’s decision to suspend him and levy $250,000 in costs.

“The Ontario Criminal Lawyers’ Association is extremely concerned about this decision of the law society and the precedent it may set,” says CLA president Norm Boxall. “We are most concerned about the potential chilling effect upon defence counsel who day in and day out perform their professional duty fearlessly advocating for their clients.”

The CLA, noting Groia has appealed the decision, says it will seek to intervene in any further proceedings.

The comments follow Thursday’s decision on penalty and costs against Groia after a panel found him guilty of misconduct last year. In harsh language, the panel found Groia’s conduct in criticizing the prosecution during Felderhof’s trial “negatively impacted the administration of justice” and that he had demonstrated a “deliberate and consistent pattern of disruptive behaviour.”

“Mr. Groia cannot be said to have demonstrated any contrition or insight into his behaviour,” wrote Bencher Susan McGrath on behalf of the three-member panel. “Indeed his position in these proceedings represented an outright attack, both on the importance of civility and the legitimacy of the law society’s regulation of uncivil conduct.”

In its reasons, the panel considered the need to provide general deterrence to the profession.

“If the law society implicitly condones the unacceptable conduct of Mr. Groia in Phase 1 of the Felderhof trial, by failing to impose a penalty, it could have an even more significant consequence on general deterrence,” wrote McGrath. “The penalty imposed must clearly indicate that such conduct will not be tolerated and that the consequences can be severe.”

The panel also looked at the appropriate range of penalty in light of previous cases involving incivility. In one such case involving Shale Steven Wagman, there were three incidents towards a mediator and a senior claims manager that resulted in 15-day suspension. But in that case, McGrath noted, there were extenuating circumstances as well as an apology.

“There are no apologies or extenuating circumstances, in this case,” she wrote.

“In the present case, rather than a thoughtful and comprehensive argument, we have found that Mr. Groia engaged in persistent unsubstantiated allegations of prosecutorial misconduct and communicated with the prosecution in a manner that was intended to be provocative and in fact was in effect offensive and inconsistent with the proper tone of professional communication,” she added.

Groia’s case has sparked an intense debate among the bar about the limits lawyers can go to in defending their clients. Groia himself has emphasized the need to vigorously defend his client and argued the law society matter would send a chill to lawyers when it comes to how they handle their cases. The panel, in fact, took Groia’s “repeated statements” during the case, including his comments on civility, into account in determining the penalty.

“These constitute the very unusual circumstances where his attitude towards his misconduct demonstrates a substantial likelihood of future misconduct,” wrote McGrath.

“In this case, the lack of remorse constitutes an aggravating factor.”