In a decision released yesterday, the Ontario Court of Appeal has overturned a conviction based on a juror’s conduct, which was ruled to have created a reasonable apprehension of bias.
Derek Welsman, jury foreman in R. v. Dowholis and producer of the since cancelled Dean Blundell show, appeared on the radio show and “made derogatory comments about sexual activity between men,” the decision reads.
|Mark Halfyard says he wouldn’t be surprised if the case goes further because 'there’s such a disagreement between the majority and the dissent.'|
“It is unusual just because factually you don’t often have a situation where the comments made by a juror are essentially on the record and can be used as evidence in court to suggest they at least displayed the apprehension of bias,” says Mark Halfyard, criminal lawyer at Rusonik O’Connor Robbins Ross Gorham & Angelini LLP.
“It’s just a matter of happenstance because he just happened to be affiliated with this radio show and, therefore, word of the communications got back to the lawyers and they were able to file that material as fresh evidence on the appeal.”
Joshua Dowholis, an HIV-positive man convicted of sexual assault in 2014, will get a new trial due to Welsman’s conduct.
“I have concluded that the conduct of the juror created a reasonable apprehension of bias such that a new trial should be ordered,” said the judgment.
Jill Presser, principal at Presser Barristers and counsel for Dowholis, said in a press release that “the court is saying that homophobia is just as unacceptable as racism in the justice system and that’s a huge step forward. The court has elevated homophobia to the no-no list in the justice system and that is really significant.”
In the two-to-one decision, dissenting Justice David Doherty argued that the radio show was known to make fun of everything and aimed to be provocative, so comments made in that context can’t be seen as a reflection of the juror’s true beliefs. Although he noted that the remarks were “inappropriate and potentially hurtful,” he goes on to write that “sometimes a joke, even a joke that is offensive, is nothing more than a joke.
“The distinction between comments that are only intended to entertain and comments that provide real insight into the speaker’s beliefs can be difficult to discern,” wrote Doherty.
“I feel my position will be misunderstood, that I do not mean to assert that humour predicated on stereotyping or ridiculing identifiable groups is harmless or acceptable,” he wrote, but that is not the concern of the appeal court. A conviction cannot be quashed based on finding a juror offensive, he wrote. That can only happen when the court is “satisfied that the comments demonstrate a reasonable apprehension of bias giving rise to a miscarriage of justice,” a hurdle he did not feel the juror’s comments cleared.
Halfyard calls the disparity a difference of opinion between the judges when it comes to the type of venue in which the comments were made.
“When you’re assessing apprehension of bias, you have to look at the context under which the comments are made,” he says. “If they’re said in a hateful way where you’d actually expect the person to express bias as opposed to jest — I think there’s a real grey area there.”
Doherty did agree that a new trial was needed but on the basis of error in instructions to the jury by the trial judge.
In a detailed decision, Justice Mary Lou Benotto disagreed with Doherty and found that “the reasonable observer would expect that a person who comes before the courts would be treated with dignity and respect and not be publicly ridiculed by the person judging him. I conclude that a reasonable person, knowing all the facts, would apprehend that consciously or unconsciously it was more likely than not that this juror would not decide fairly.”
Benotto writes that Doherty’s reference to racial bias in another court of appeal case, R. v. Parks, at para. 59 applies equally to bias against homosexuals.
“The likelihood that a bias against gay men would affect the juror’s decision-making process is greater given his willingness to publicly disregard instructions, engage in homophobic rhetoric, and mock the court process,” she writes in the majority decision. “The issue is not whether the juror meant what he said. Nor is it whether he was in fact unfair. The issue is the impression that his conduct created.”
In the release, Presser agreed the focus shouldn't be on “whether this particular juror actually was homophobic or what the entertainment value is for the radio broadcast" but on upholding the integrity of and appearance of fairness in the justice system.
Halfyard says he wouldn’t be surprised if the case goes further because “there’s such a disagreement between the majority and the dissent.”
The Supreme Court of Canada has provided direction in multidisciplinary class action proceedings, affirming that, in collaborating and co-ordinating such proceedings across multiple jurisdictions, the courts have broad and flexible powers through provincial class action statutes and the inherent jurisdiction of the court.
|Harvey Strosberg hails the SCC’s judgment as a vindication of the 2013 decision of Ontario motion judge Warren Winkler.|
The SCC rendered its decision today in two companion class action proceedings brought on behalf of individuals affected by the “tainted blood” tragedy of three decades ago.
“This judgment is a breath of fresh air,” says Paul Pape of Pape Barristers PC in Toronto, counsel for Dianna Louise Parsons (deceased), the representative plaintiff in Ontario and several other jurisdictions across Canada. “The SCC has fully embraced class proceedings as a procedural tool to enhance access to justice, without any equivocation at all. It’s important for the country and the administration of class proceedings.”
Endean v. British Columbia and Parsons v. Ontario were class actions on behalf of individuals infected by the Canadian blood supply with hepatitis C between 1986 and 1990. A pan-Canadian settlement agreement was reached in 1999, which assigned a supervisory role to the British Columbia, Quebec and Ontario superior courts.
In 2012, class counsel filed motions before the supervisory judges relating to the settlement agreement, but British Columbia, Quebec and Ontario opposed the proposal on the basis that the judges didn’t have jurisdiction to conduct hearings outside their home province. However, motion judges in each of the three jurisdictions agreed that superior court justices could sit in another province with their judicial counterparts to hear the settlement agreement motions.
Ontario and British Columbia appealed. The Ontario Court of Appeal agreed with the motions judge that the basis for the power to conduct a hearing outside the province was the superior court’s inherent jurisdiction, but it concluded that a video link was required between the out-of-province and Ontario courtrooms. The British Columbia Court of Appeal found that common law prohibited superior court judges from sitting outside the province at all.
The Supreme Court judgment, written by Justice Thomas Cromwell, who retired in September, allowed the representative plaintiffs’ appeal and dismissed Ontario’s cross-appeal.
Pape and Harvey Strosberg of Sutts Strosberg LLP in Windsor, Ont., who is another counsel for the Parsons class, hail the SCC’s judgment as a vindication of the 2013 decision of Ontario motion judge Warren Winkler, then sitting as a judge of the Superior Court of Justice.
“This is considered to be a contentious decision; the Supreme Court of Canada has vindicated him entirely,” says Pape.
Strosberg also noted the SCC’s rejection of the necessity of the video link to connect courtrooms in different jurisdictions and the dismissal of the common-law argument. “In England, in 1858, when B.C. was incorporated . . . the common law prohibited judges in England from sitting outside of England,” says Strosberg. In this decision, the SCC justices have said “maybe it was good in 1858, but not today. Common law has changed.”
Sharon Matthews of Camp Fiorante Matthews Mogerman LLP in Vancouver is counsel for Anita Endean, the representative plaintiff in British Columbia. She also sits on the Canadian Bar Association’s National Class Action Task Force, which is looking at multijurisdictional class actions.
“The SCC has interpreted s. 12 in most of the common-law statutes [for class-action proceedings] as giving very broad and flexible powers to the courts,” she says. Some courts dealing with s. 12 “have limited the instances and the purposes for which it can be used, and I think the statements in this [SCC] case — that those provisions should be seen as very broad and providing the courts with flexible powers — are important statements.
“What this case says is the way we deal with cases is not frozen in time,” says Matthews. “It will evolve to meet the demands of cases before the courts, in the context of the real imperative for co-ordination for superior courts with overlapping jurisdictions.”
The Barreau du Québec has added its voice to a growing chorus of legal groups calling for more public funding and radical reforms to help reduce what they say are ridiculously long court delays that are hindering access to and making a public mockery of the province’s court system, particularly in regards to criminal justice.
|Claudia Prémont notes delays and budget cuts are ‘bad news for the administration of justice’ in Quebec.|
She goes on to list a series of complaints, ranging from delays of up to three years for criminal trials to be heard in Montreal at the Superior Court level, and two years in Quebec Court.
The barreau said those delays, together with a recent $5-million cut in the budget of Quebec’s Directeur des poursuites criminelles et pénales office “spells bad news for the administration of justice.”
The Quebec bar is notably calling on the Liberal provincial government to provide the necessary resources (i.e. a big cheque) to Justice Minister Stéphanie Vallée that will permit her “to remedy this problematic.”
The barreau’s public sortie comes just days after the former head of the Superior Court of Quebec, Justice François Rolland, made headlines for slamming the trial delays in the province’s court system in a Senate hearing in Ottawa.
The former chief justice notably decried the fact that criminal cases by jury are currently being scheduled for 2019.
“Delays are bad for the accused, extremely bad for the victims, and extremely bad for Canadian society and the credibility of our judiciary,” Rolland told the committee, which is examining questions related to court delays and their effects on penal justice across the country.
According to Rolland, changes have to be made to make delays more reasonable like they were before 2009, the year Quebec started invoking mega trials to deal with biker gangs.
“If we don’t do anything we are going to hit a wall, and once that happens we can’t back up,” he said.
Rolland added that when he joined the bench in 2004, jury trials were always set within a year, usually seven to nine months.
“At the time I’m saying this,” he said, “you can’t get a [Superior Court of Quebec] date for a trial set in Montreal before 2017. For 2018, there are a few dates available, and they’re already booking dates in 2019. The situation is similar in Quebec City.”
In addition to the mega trials, he said the rising use of electronic communication of evidence, increased resources in police investigations, and even the increase in Crown attorney hirings have created a massive uptake in demand that the static numbers of judges and courtrooms can’t handle or accommodate.
A few weeks ago, another judge, Quebec Court Judge René De La Sablonnière, also made headlines for a pilot project he’s instigated that aims to reduce delays in criminal court cases.
Calling delays “the cancer of the judicial system,” De la Sablonnière pointed to a sexual touching case he threw out in March, nearly four years after charges were laid.
“These delays erode witnesses’ memories of events, unfairly prolong preventative detention of accuseds, and undermine the credibility and legitimacy of the institution,” the judge told Quebec City’s Le Soleil.
He gave the interview to publicize a pilot project that he and Crown prosecutor Sabin Ouellet have teamed up on.
The unique Quebec-first project aims to increase the number of negotiated settlements in cases by four per cent a year.
Currently, 93 per cent of the 6,600 criminal cases that are opened every year in Quebec are settled without a trial.
In roughly half of those cases, guilty pleas are entered after several delays.
The judge says he and Ouellet plan to steal a page from British Columbia’s approach, in which accused are offered the most lenient punishments possible in exchange for a guilty plea, and given 120 days to consider it.
The Canadian Bar Association plans to pass a resolution this month to urge the government of New Brunswick to reconsider its decision to close four provincial courts.
|The courthouse in St. Stephen, N.B., is scheduled for closure. (Photo: Google Streetview)|
The CBA’s draft resolution, which will be discussed at the association’s upcoming mid-winter meeting, says the closure of these courts “undermines access to justice for local residents, in particular the most vulnerable and impoverished residents who cannot travel great distances to attend court.”
If the resolution passes, the CBA will also call on the attorney general of the province to conduct “a comprehensive review of the justice system with a view of maintaining courts in local communities and determining where savings might be made that could additionally fund the justice system in New Brunswick.”
The bar association will also encourage federal, provincial, and territorial governments to consult with it before considering whether to close any court.
St. Andrews, N.B., lawyer David Bartlett, who is pursuing a judicial review of the government’s decision on behalf of the Charlotte County Barristers’ Society, says he lauds the CBA’s plan to get involved.
“They keep saying there is a huge saving to be had,” Bartlett says of the government’s decision to shut down the courts. He adds the province is suggesting there’s a shortage of resources needed to maintain a certain level of security at the courts.
“They’re effectively trading security for access to justice,” he says.
Despite suggestions the court closures will save cash, Bartlett says this decision is in fact costing the province elsewhere.
“Now the RCMP and police cars are being used to transport witnesses to and from Saint John,” he says. “Police officers are being lost to policing work because they’re now traveling an hour-and-a-half to get to court, an hour-and-a-half to get back.”
Without access to the courts in St. Stephen and Grand Manan, it takes the average resident about an hour-and-a-half to attend court in the city, says Bartlett. Those who do not have cars have no other options because there is no public transportation, he adds.
When Bartlett brought a motion for judicial review of the decision in October 2015, the province challenged it on the basis it is statute barred. After the minister of finance mentioned plans to close the courts in a budget speech in March 2015, Bartlett and the barristers’ society failed to bring the judicial review application within the 90-day deadline, the province said. But Bartlett argued the budget speech is a political speech and not an official public announcement of the closures.
A lower court judge agreed with Bartlett and allowed the matter to proceed, but the province will challenge that decision at the court of appeal in March.
A new report on the experience of self-represented litigants in summary judgment motions has at least one law professor concerned about unfairness to those unfamiliar with the process.
“They’re pushing on an open door because they know there’s already a bias here,” says University of Windsor Faculty of Law professor Julie Macfarlane of the growing use of summary judgment motions by lawyers acting against unrepresented parties.
Today, the National Self-represented Litigants project released a report on the experience of self-represented litigants in regards to summary judgment motions brought in their cases.
Working with Katrina Trask and Erin Chesney, Macfarlane, who’s director of the project, compared the results of summary judgment motions involving self-represented parties in both 2004 and 2014, the year in which the Supreme Court of Canada released its landmark decision in Hryniak v. Mauldin.
In 2004, the researchers found five cases across Canada involving a summary judgment motion with a self-represented party. By 2014, the number of cases had increased to 61.
All but four of the 2014 cases involved a motion brought by a party with counsel. The success rate of the motions was 96 per cent, a number Macfarlane calls “extraordinary.”
“There is a risk here, and the risk is what we’re trying to report on,” she says.
She cites a concern that parties with counsel are using summary judgments as a tactic against those unfamiliar with the system and who are “completely confused.”
“We need to be more sensitive to the fact that people make mistakes,” says Macfarlane.
“The much deeper problem is a lot of people who are in a legal process now are not managing what they need to do in order to represent themselves properly,” she adds.
The success rate for summary judgment motions was similar even after removing cases in which there were findings that the unrepresented party had been vexatious.
The researchers also looked at Ontario-specific data involving motions under rules 20 and 21 of the Rules of Civil Procedure. Using those criteria, the number of cases involving unrepresented parties was four in 2004 with three of them brought by people with counsel. By 2014, there were 13 such motions with 88 per cent of those brought by represented parties having been successful.
Given the numbers, Macfarlane is calling for some assistance to help unrepresented litigants respond to summary judgment motions.
“In some of these cases, they had literally left off a comma,” she says, raising a concern about access to justice for those without counsel.
Part of Macfarlane’s concern is around judges’ attitudes and potential bias given what she says is their understandable difficulty in dealing with unrepresented parties. But, she adds, it’s unfair to hold such litigants to the same standards as lawyers.
And with several courts considering new summary judgment procedures in light of Hryniak, Macfarlane is urging caution.
“We have to be careful about how we put those new procedures together,” she says.
A group of New Brunswick lawyers have launched legal action to prevent at least two court closures in the province.
St. Andrews lawyer David Bartlett filed a motion Oct. 7 on behalf of the Charlotte County Barristers’ Society, seeking that a budget decision to close certain courthouses announced in March be quashed or suspended. Bartlett says he will be filing another motion seeking a temporary injunction in the next two weeks to stop the closures, pending the hearing of his Oct. 7 motion.
Courts in Sussex and Grand Falls were put on the chopping block and have already ceased operations, Bartlett explained, while the two he is trying to save in Grand Manan and St. Stephen’s are winding down with no caseload scheduled after Oct. 23.
“It’s baffling,” Bartlett says.
The court in St. Stephen’s “is a full-blown court” and central for the very rural county. It contains offices for the judges, youth court services, a law library, probation and victim services and the department of mental health. Bartlett said those services won’t be as accessible if court services are consolidated at a new courthouse in St. John, a one-and-a-half to four-hour drive for most of its population. Added to the travel issue is that the county covers three islands, including Grand Manan, that can only be accessed by additional lengthy ocean ferry rides.
“Charlotte County is a very rural area, it’s also a poor area and a lot of people simply don’t have cars. It’s an hour-and-a half to four hours minimum for over half our population in St. Stephen’s to drive to the new court house in St. John and on top of all of this there is no public transit,” Bartlett says. “The RCMP here will be the highest paid taxi drivers in the world.”
Bartlett explained in 2007 the provincial government of the day closed some smaller satellite courts and was looking to establish if more courts could be closed. He says a task force was formed at the time and two Law Society representatives were chosen as members, “but that task force never met.”
Bartlett said the society was ensured by the provincial powers that before any court closure there would be advance consultation, and if a court was deemed fit for closure, there was to be a year delay before implementation.
He said this past March when the Ministry of Finance announced the closures it came as a surprise.
“There was no advance notice whatsoever,” he says, adding part of his process now is finding out exactly who made the decision to close the courts and on what grounds. He says there is a request for disclosure seeking that information.
“We don’t know where that decision [to close the courts] was made and that’s part of our application, seeking disclosure. It’s like trying to scale a glass wall with no finger holds.”
Judges on the U.S. Bankruptcy Court in Wilmington, Del. and Ontario Superior Court of Justice held an unprecedented joint cross-border trial on the dispute, with the courtrooms linked by video. The legal battle has raged for years through numerous courts, chewing up more than $1 billion in fees for lawyers and other advisors.
Nortel filed for bankruptcy in 2009 and sold its global operations and patents, raising the cash in dispute. In the years that corporate entities in Canada, the United States and Europe have fought over the funds, retirees and bond investors have awaited repayment.
U.S. Bankruptcy Judge Kevin Gross and Justice Frank Newbould said in separate opinions that each regional business would receive cash to pay its creditors based on their claims against it as a percentage of the overall claims worldwide.
The judges said in their simultaneous opinions that a pro rata division was the most fair and satisfactory way to split the money.
Gross wrote in his 130-page opinion that the various regional business “have lost sight of the irrationality of their respective positions” and left “no virtually no middle ground.”
The Canadian unit had argued it should receive about 83 per cent of the money, because it was the legal owner of many of the assets sold. The European businesses wanted the money divided based on each region’s contribution toward creating the value of the assets that were sold. As the U.S. unit saw things, it deserved 73 percent of the cash based on its beneficial ownership model.
Lawyers for the U.S., Canadian and European units of Nortel did not immediately respond to a request for comment.
“It would not be going out on a limb to say that the rulings get appealed regardless of what they contain,” wrote Kevin Starke, an analyst with CRT Capital in a note published before the opinions.
He said a “middle ground” ruling was best in terms of wrapping up the cases without dragging them out for more than another year.
Nortel was once among the world’s largest tech companies. Its stock market valuation swelled to $260 billion and Nortel employed nearly 100,000 at its peak, before the bursting of the telecom bubble and accounting problems.
In his decision, Newbould gave kudos to the court reporters, technical staff and lawyers who all worked on the complex cross-border case. As well he had praise for his U.S. counterpart.
“I want to thank Judge Gross for his courtesies and good humour. It has been a pleasure to work with him. Without such a good relationship and the trust that we developed for each other, this trial and its conclusion would not have been possible.”
Read more on the nuts and bolts of how the case was conducted in next week’s Law Times.
|Justice Marianne Rivoalen is the new associate chief justice of the Manitoba Court of Queen’s Bench (Family Division).|
Rivoalen was appointed a judge of the Court of Queen’s Bench for Manitoba (Family Division) in 2005. Prior to that, she was a senior counsel and team leader of aboriginal law services with the Department of Justice Canada as well as the indian residential school litigation counsel as well as a long-practising litigation lawyer with Aikins,MacAulay & Thorvaldson in Winnipeg. She has also been an arbitrator with the Manitoba Labour Board, deputy chief commissioner of the Residential Tenancies Commission in Winnipeg, and a litigation lawyer with Pitlabo & Hoskin in Winnipeg.
Richard F. Southcott, vice president and general counsel at Irving Shipbuilding Inc. in Halifax, has been appointed to the Federal Court to fill a new position created by Bill C-11.
Southcott was called to the bar in 1993, then joined Stewart McKelvey in Halifax as an associate, practising marine law and commercial litigation. He became a partner in 2001, and was the regional managing partner from 2008 until 2013, when he joined Irving Shipbuilding.
Also from Halifax, R. Lester Jesudason has been appointed to the Supreme Court of Nova Scotia, Family Division. He replaces Justice R. James Williams, who elected to become a supernumerary judge as of April 18.
Jesudason was called to the bar in 1997, then joined Blois Nickerson & Bryson LLP in Halifax as an associate, practising civil litigation and insurance law. He became a partner in 2002. He has been chairman of the Nova Scotia Police Review Board and active with various bar associations.
In Saint John, N.B., Marie-Claude Blais is the newest judge of the Court of Queen’s Bench of New Brunswick, Trial Division. She replaces to replace Justice Peter Glennie who went supernumerary April 22.
Blais was called to the bar of Quebec in 1995 and New Brunswick in 1998. She was appointed Queen’s Counsel in 2010. She has been counsel with McInnes Cooper since 2014. Prior to that, she had been minister of education and early childhood development for the province of New Brunswick. She was also the first woman to serve as attorney general and minister of justice and consumer affairs for New Brunswick. She was also a lawyer with LeBlanc Maillet, where she practised corporate and business, family, and real estate law.
In Ontario, Superior Court Justice Lois B. Roberts has been elevated to the Court of Appeal. She fills the spot left when Justice George Strathy was named chief last June.
Roberts was appointed to the Superior Court in 2008. Prior to her appointment, she was a lawyer with Genest Murray LLP and Cassels Brock & Blackwell LLP, practising commercial litigation, employment law, and human rights law.
Toronto lawyer Kenneth G. Hood fills Roberts spot on the Superior Court. He was called to the bar in 1982 and was a certified specialist in civil litigation.
Hood was counsel with Schneider Ruggiero LLP since 2010. Prior to that, he was worked with firms Lawrence Lawrence Stevenson LLP in Brampton, Ont., Glaholt LLP in Toronto, Dingwall McLaughlin and Woolley Dale & Dingwall (later changed to Dale and Dingwall).
|Interior of the Supreme Court of Canada in 1890. (William James Topley/Library and Archives Canada)|
This obscure bit of trivia is about to become a lot less obscure with the announcement yesterday that the SCC — with the help of its technology partners and provincial law foundations — has finally succeeded in making its complete collection of historical decisions available online (hence, the link above).
The court credits Lexum, the software company that manages the SCC’s online repository, as the driving force behind the decision to disseminate its complete collection.
Pierre-Paul Lemyre, head of business development at Lexum, says his company was there right at the very beginning, when in 1993, Daniel Poulin — the University of Montreal law professor who would go on to found Lexum — approached the court with the idea of publishing decisions on the newfangled medium known as the Internet.
The SCC became the first Canadian court to post decisions online, and only the third or fourth court in the world to do so. The first online decisions came from the Supreme Court of the United States, published by Cornell University’s Legal Information Institute (LII).
“So it was at the very beginning of what we know of as the Web today,” says Lemyre. “From the get-go, the dream was that at some point all decisions, the complete collection, would be available for people to consult and use online.”
Only current decisions, however, were being published until 2007, when Lexum partnered with CanLII (the Canadian version of Cornell’s LII) to solicit funding from the provincial law foundations in order to post Supreme Court decisions retroactively.
The initial idea was to go back 10 years. In 2007, Lexum and CanLII worked with the Law Foundation of Ontario to publish decisions going back to 1986; in 2009, the Law Foundation of British Columbia came on board; in 2010 Alberta; in 2014 Quebec; and by the end of 2014, Lexum and CanLII funded projects to include SCC decisions emanating from PEI, the territories, and Newfoundland and Labrador.
Working with the provincial law foundations, Lexum and CanLII began to fill in the blanks online. By the end of 2014, only 522 appeals remained — those from Manitoba, New Brunswick, Nova Scotia, and a few older appeals from the Federal Court.
Then, earlier this year, the Supreme Court decided to finish the job with a $25,000 grant that Lexum and CanLII used to collect, scan, and type out the remaining appeals.
Lemyre says the SCC’s funding does more than provide a resource: “For the people involved in the judicial field, it’s a statement that the courts should play a central role in improving access to their own decisions, which they are not all doing.”
Even as Lexum announces the complete collection of SCC decisions online, however, Lemyre says they’re not quite done yet.
While all decisions published in the official Supreme Court Reports catalogue are now available online, decisions that were not reported — mainly because they were considered insignificant — remain a mystery.
“So for the next step, we’re thinking of looking at the unreported decisions, because before 1970, not all decisions from the Supreme Court were actually put in the reports. We estimate that there may be about 500 older decisions that were not reported.”
These decisions would be more interesting from a historical perspective than a legal one, but Lemyre says you never know.
“We’ll discover that when we process them, but we can run into interesting things there. . . . To cite them you have to know they existed. Probably lawyers involved in the file itself would know about them, but that’s about it.”
|‘Two wrongs do not make a right and provocation is not a reason to contravene the rules about pleading,’ wrote Justice Paul Perell.|
Large sections of the statement of defence in Jacobson v. Skurka include “a level of detailed evidence one would not find in reasons for judgment after a trial,” the judge observed.
Another section of the pleadings was described by Perell as “replete with congratulatory, self-serving conclusions such as a ‘very solid plea agreement, really good plea, got him a better plea agreement because of our efforts,’” says the ruling, issued March 16.
“It may be the situation that Mr. Skurka was baited by the provocative pleading of Mr. Jacobson to respond with a provocative and polemic pleading of his own, but Mr. Skurka ought not to have taken the bait. Two wrongs do not make a right and provocation is not a reason to contravene the rules about pleading,” Perell wrote.
Jacobson was represented by Toronto lawyer Robert Trifts on the motion to strike the statement of defence. Skurka is represented by William McDowell, a partner at Lenczner Slaght LLP in Toronto and a bencher of the Law Society of Upper Canada.
“At the end of the day, Mr. Jacobson is pleased with this decision,” says Trifts, who is co-counsel with Ronald Flom in the litigation.
McDowell is out of the country and unavailable for comment. Paul-Erik Veel, a colleague at Lenczer Slaght who is also acting for Skurka, says “given that the overall matter is still before the courts, we’re not in a position to comment.”
Perell granted Skurka leave to amend his statement of defence along with directions to comply with the rules of pleading. Perell also denied Jacobson’s request to strike Skurka’s counterclaim, which seeks $1.8 million in damages for the tort of abuse of process.
The fractious legal dispute stems from Skurka’s past representation of Jacobson on criminal charges filed in 2006 by the United States government. Jacobson was alleged to have used his Tel Aviv-based credit card processing company to facilitate $126 million in illegal online pharmaceutical sales to U.S. customers.
Skurka was hired as the lead counsel and retained lawyers in the U.S. and Marie Henein in Toronto to assist with the defence. Jacobson is also suing Henein in a separate action. Her statement of defence refers to the allegations as “false, concocted, self-serving, and specious.” None of the allegations has been proven in court.
Jacobson has ties to senior Conservative politicians in Canada and intelligence officials in Israel. A photo taken in Ottawa in 2010 shows him standing between Prime Minister Stephen Harper and Israeli Prime Minister Benjamin Netanyahu.
Nearly two years before that photo was taken, Jacobson entered a guilty plea in the U.S. to a single count of money laundering. He forfeited $4.5 million, but remained free on bail pending sentencing. Last fall, after hiring new U.S. lawyers, Jacobson was permitted to strike his guilty plea and the charge was dropped, although the $4.5 million remained forfeited.
The decision issued by Perell this week is also critical of the content in the amended statement of claim filed by Jacobson in his action against Skurka. The Superior Court judge noted Jacobson professes his innocence of the allegations made by U.S. authorities in 26 paragraphs of his 68 paragraph amended statement of claim.
One subheading that states “complete vindication of Nathan Jacobson — an innocent man,” is an example of “the improper pleading of evidence and emotive grandstanding polemic that appears to have provoked Mr. Skurka to respond in kind,” Perell wrote.
The judge also suggested both sides have not complied with the Rules of Civil Procedure in the pleadings and fail to include “concise statements” of material fact.
Perell cited a paragraph that describes discussions between Skurka and Henein and when they would meet, as an example of unnecessary information in the pleading.
“With respect, nothing is added, not even interesting colour and narrative excitement or suspense, by knowing that Ms. Henein was out of the country and that Mr. Skurka arranged to meet with her upon her return to Canada. Mr. Skurka’s statement of defence is cluttered with this sort of useless information,” Perell stated.
The counterclaim by Skurka alleges that Jacobson is using the professional negligence action for an improper purpose.
“Allowing Mr. Skurka’s counterclaim would not discourage access to justice for plaintiffs suing their criminal defence lawyers, but it would discourage such plaintiffs from overreaching in their civil proceeding against their criminal lawyer and making their innocence in the criminal proceedings a material issue in the civil proceeding,” Perell wrote.
Update 12:55pm: Quotes added.
Subscribe to Legal Feeds
- Alex Robinson
- Patricia Cancilla
- Elizabeth Raymer
- Jennifer Brown
- Gabrielle Giroday
- Mallory Hendry
- Tim Wilbur
- Yamri Taddese
- David Dias
- Neil Etienne