Order could be restored at the Ontario Superior Court’s overstretched fee assessment office, thanks to a decision yesterday from the Divisional Court that relieved the court of sole jurisdiction to handle those files.
The Divisional Court’s ruling contradicts another one released by the same court in 2014. Jane Conte PC v. Josephine Smith shocked the system when it said all lawyer fee disputes must be resolved at the Superior Court. Prior to the 2014 ruling, those matters could be dealt with at the Small Claims Court.
A more liberal interpretation of the Solicitors Act, Justice Michael Dambrot’s decision in Cozzi v. Heerdegen, says the Small Claims Court has jurisdiction to deal with claims arising from simple retainers. Dambrot says only contingency fee arrangement accounts need be assessed by the Superior Court’s assessment office.
In Conte, Justice Ian Nordheimer pointed to a little-known section of the Solicitors Act, which states all claims for non-payment must go to the Superior Court.
“Partly because of that decision, a very significant jam was created,” says Toronto lawyer Ben Hanuka of Law Works PC. “Everything had to be diverted through this narrow pipe [at] the assessment office.”
In an endorsement written early this year, Superior Court Justice Sean Dunphy said the delay required to get an assessment hearing is “unacceptably long.” But in the same ruling, Dunphy dismissed requests by Toronto intellectual property law firm Gilbert’s LLP for an order that two clients pay outstanding bills arising from undisputed retainers.
Essentially, the issue at the centre of the chaos is poorly drafted legislation, according to Hanuka. He says, s. 17 of the Solicitors Act might could, technically, be read to suggest that every written agreement for legal services must get a blessing from the Superior Court before a payment can be made.
“The problem is that it’s almost nonsensical,” Hanuka says, adding Dambrot’s decision in Cozzi is “the only way forward.”
After Nordheimer wrote Conte, paralegals like Frederick Goodman, who went the Small Claims Court to resolve lawyers’ fee dispute matters, could no longer do those jobs as paralegals don’t have standing at the Superior Court. This morning, speaking from the Small Claims Court, Goodman says he’s “back in business.”
“This decision . . . restores our ability to pursue claims for lawyers in the Small Claims Court for unpaid accounts but only in so far as those [accounts] which are not contingency fee arrangements,” says Goodman .
With files from Michael McKiernan
A class action launched by land surveyors who claimed copyright infringement against Teranet — the private sector company that manages Ontario’s land registry system — has been dismissed.
|The Ontario Superior Court has ruled the Crown has copyright over plans of survey. (Photo: Shutterstock)|
The class action in Keatley Surveying v. Teranet was filed in 2007, and was certified on appeal in 2015. Both sides moved for summary judgment on the common issues and the decision was issued May 6 in Ontario’s Superior Court.
Keatley Surveying brought the action on behalf of about 350 land surveyors in private practice in Ontario whose surveys were scanned and copied into Teranet’s digital database and made available online. By copying and selling their plans online, the surveyors claimed Teranet was breaching their copyright and unlawfully appropriating for itself the benefit of the class members’ professional land survey work.
The class members’ complaint was that a for-profit third party inserted itself between the government and users of land registration services and “reaps substantial profits at the expense of class members.”
Justice Edward Belobaba decided in favour of Teranet and the class action was dismissed on common issue two, which asked whether the copyright in the plans of survey belongs to the Province of Ontario under s. 12 of the Copyright Act, as a result of the registration or deposit of the plans of survey in the land registry office.
Teranet argued the plans of survey in question were “prepared or published by or under the direction or control” of the province and therefore copyright belongs to the Crown.
Belobaba said in his view “ . . . statutory provisions make clear that when plans of survey are registered or deposited at the land registry office, the province takes ownership of the property in these works which includes the right to make copies.”
“In my view, s. 12 of the Copyright Act, primarily a ‘term of copyright’ provision, clarifies Crown copyright but does so ‘without prejudice to any rights or privileges of the [provincial] Crown.’ Thus, the provincial ‘property of the Crown’ provisions already discussed, and s. 12 of the federal Copyright Act, can live together and operate concurrently,” wrote Belobaba.
“In any event, the answer to Common Issue 2 is ‘yes.’”
As both sides agreed that was the determinative issue then there is no copyright infringement “and that is the end of the class action.”
The next step could be an appeal to the Court of Appeal, but plaintiff lawyer Garth Myers would not comment on whether an appeal will be pursued.
“We were successful on a couple of the common issues and we’re quite pleased we succeed on the Crown copyright issue and assignment issue. We got caught on the second part of common issue two, which was determinative. We don’t agree with the judge’s finding on that issue. The issue that remains is whether the provincial statutes provide for copying that takes away copyright of land surveyors,” said Myers, an associate with Koskie Minsky LLP.
Belobaba decided Teranet was entitled to costs and while it would have sought $200,000, he indicated a reasonable costs award is “probably around $125,000.”
Myers said there will be submissions on costs.
Legal Feeds could not reach counsel for Teranet before publication.
A personal injury lawyer won’t be getting thousands of dollars in fees after a judge ruled an agreement reached with her clients was “not fair or reasonable.”
|Clients will get $2.75 million after a sailboat incident but their lawyer won’t be getting all the fees requested.|
Edwards — who has been developmentally delayed since shortly after his birth — suffered serious health effects from the fall, with a doctor indicating he is permanently disabled.
In 2012, Edward’s mother Eve Ojasoo and her husband retained De Rose PC to seek damages as a result of Jared’s fall, on Jared’s behalf, as well his family members.
A settlement of $2.75 million was reached, however, in his ruling Ontario Superior Court Justice Mario D. Faieta said he did not approve of the contingency fee agreement the law firm had with its clients.
“Unlike other CFAs, the Agreement does not state that the client has been advised to obtain independent legal advice before signing the CFA,” said Faieta.
“The misunderstanding related to the payment of disbursements demonstrates the importance of encouraging prospective clients to obtain independent legal advice before signing CFAs.”
In his ruling, Faieta stated an agreement must comply with the provincial Solicitors Act, and regulations that fall under it. In particular, Faieta emphasized an agreement must state that a client is advised hourly rates can vary among lawyers and the client can consult with other solicitors to compare rates. He also said the agreement did not show an example how the contingency fee is calculated.
“While some may view this conclusion as a harsh result, even though these requirements have existed for more than a decade, there is nothing in the Act or O. Reg 195/04 that permits this court to waive compliance with these requirements,” wrote the judge.
Faieta also said Ojasoo believed the law firm bore the risk it would not be reimbursed if the matter was unsuccessful, but this wasn’t accurate.
The agreement actually stated: “In addition to the Legal Fee or the Court/arbitration-ordered Costs, you agree to pay all expenses, even if we cannot settle your claim and/or you lose at trial.”
“Clearly Eve did not fully understand this agreement,” wrote Faieta.
“A significant aspect of this Agreement is establishing who bears the risk of paying for litigation expenses in the event that this action is unsuccessful. Eve did not understand that she, rather than De Rose, bore the risk of paying for disbursements in those circumstances. Eve’s misunderstanding of the Agreement is troubling as it demonstrated that De Rose did not adequately explain the Agreement to her.”
In his conclusion, Faieta approved the settlement to Edwards, but declared the agreement with the firm to be void.
He slashed the amount the firm was set to receive.
“I order De Rose’s account for legal fees, disbursements and taxes in relation to Jared’s claim be reduced by $381,311.30 to $225,00.00,” he ruled.
Darryl Singer, a litigation lawyer with Singer Barristers, said the “real lesson from this decision is for personal injury lawyers to ensure their retainer agreements will be upheld.
“For example, my firm’s contingency agreements specifically state that if there is no settlement or judgment the client pays nothing and I eat my disbursements,” he says. “Additionally, rather than sign the client immediately and have an ‘out’ clause, don’t have the client sign the retainer until you at least have some basic information to determine if you want the case.”
Lawyers can protect themselves by explaining the agreement to a client and ensuring it complies with the Act, Singer says, as well as stating “in the agreement that no fees or disbursements will be payable to you if there is no recovery.”
“Cases like this . . . embolden clients to challenge fees that for the most part the lawyers deserve,” he says.
An Ottawa woman who worked for McDonald’s restaurants for more than 25 years has received $104,499.23 in lieu of 20 months notice for wrongful dismissal.
|The thresholds a former McDonald’s manager was ordered to meet ‘were arbitrary and unfair,’ ruled an Ontario judge. (Photo: Jacky Naegelen/Reuters)|
On Aug. 2, 2012, PJ-M2R ended Brake’s employment after 20 years with the company. Brake felt she was constructively dismissed and sought damages for common law notice and severance.
Employment lawyer Ellen Low, of Whitten & Lublin, says the amount awarded “isn’t totally out of the ballpark” largely due to Brake’s age and years of service.
“While it’s always an individual assessment every time and we know the Court of Appeal hasn’t said one month per year, she’s been there 20 years and is 62 years old at the time she is let go,” says Low. “So despite the fact most people would assume this is a lower managerial position, whenever you’re dealing with someone who is 62 it may become more persuasive.”
Even though the woman received glowing performance reviews, Low says that isn’t supposed to be taken into account with the Bardal factors (age, length of service, character of employment, and availability of similar work).
“My personal view is there was some weighing of those non-Bardal factors whenever judges are making a determination about a notice period,” she says. “It’s always more art than science.”
Low suggests Brake might have also been able to make a case for unpaid overtime since she clamed to have worked 12-hour days almost seven days a week, but she didn’t.
“It was possible if she was truly a manager she was exempt,” she says.
PJ-M2R’s owner, Perry McKenna, thought he had the right to terminate Brake since she failed to meet the standards expected of her position.
At the time Brake was dismissed, she was 62 years old (now 65) and had worked for McDonald’s for the majority of her working life — about 20 of those years was for PJ-M2R. Her career with the restaurant chain started in 1986 in Corner Brook, Nfld. She moved to Ottawa in 1999 and started working for PJ-M2R and was considered a top employee for many years. In 2004, she was promoted to store manager. From 2000 to 2007, she received high ratings in her performance reviews.
In 2008, Brake was transferred to manage the company’s Kanata, Ont., McDonald’s. As part of her duties, she also managed a nearby McDonald’s located within a Wal-Mart store. Eventually, in November 2011, Brake was assigned exclusively to the Wal-Mart location.
Her first negative review came in 2011 from McKenna. The Wal-Mart location she had been transferred to had been trending badly since at least April 2011. The location ranked 1,410 out of 1,437 McDonald’s restaurants in Canada.
On April 16, 2012, Brake was summoned to a three-month review meeting. She received another overall rating of “needs improvement.” At the meeting, she was informed that as a result of her performance, she would be participating in McDonald’s progressive discipline program known as Goals Achievement Process.
On Aug. 2, 2012, McKenna told Brake she had failed the GAP program and they needed to discuss her future. She argued she should be allowed to stay on as a manager, but she was offered the position of first assistant. The salary would be the same, but the benefits would be less. She would also have to report to employees she had trained and supervised, many who were younger and less experienced.
McKenna said she had to “take a demotion or go.” Brake refused to accept the demotion and left, never to return. The termination of her employment “for cause” was sent to her in writing soon thereafter.
In his decision, Phillips wrote: “I find that the GAP program was not implemented in accordance with its terms, either in letter or spirit. The thresholds that Ms. Brake was ordered to meet were arbitrary and unfair.”
Since her dismissal, despite several efforts, Brake was not able to secure a comparable managerial position.
“I find that her subsequent employment represents a reasonable effort on her part to mitigate her losses. However, I also find that her ability to find employment does not take away from the loss she suffered from being dismissed without cause.”
Phillips wrote that Brake was “set up to fail” from the beginning of the GAP program.
“Not even the fact that she did ultimately manage to meet the Defendant’s heightened expectations could save her in the end,” he said. “Well before the completion of the GAP, Ms. Brake’s removal from her manager position was a foregone conclusion. Given the length of her employment and her loyal history of contributions to the organization, she was entitled to expect more assistance in overcoming her newly alleged shortcomings. I find the GAP program as implemented by the Defendant was less an instrument of help than it was a way to record Ms. Brake’s anticipated inability to meet the Defendant’s shifting expectations in order to justify a decision that had effectively already been made.
“I find that in the overall circumstances, PJ-M2R unilaterally made a substantial and fundamental change to Esther Brake’s employment contract and that in doing so constructively dismissed her without cause,” wrote Phillips.
In March 2013, Brake accepted a position as a cashier at Home Depot. She works about 35 hours a week and earns $12.50 per hour. She continues to work there.
“The cashier position she occupies now at Home Depot is so substantially inferior to the managerial position she held with the Defendant that the former does not diminish the loss of the latter,” wrote Phillips.
Well-known veteran lawyer George Walker says he has been vindicated following the release of an Ontario’s Superior Court ruling in a lengthy battle against a former client seeking to assess the lawyer’s accounts.
“Counsel can never be too careful in documenting instructions received from a client or steps taken on a client’s behalf,” says Walker, a 45-year veteran of law and certified criminal law specialist who once represented Karla Homolka.
Earlier this week Superior Court Justice Catrina Braid released her decision in Tsigirlash v. Walker, dismissing a former client’s efforts to assess Walker’s accounts.
The client, George Tsigirlash, made allegations in late 2013 that he had paid Walker a $20,000 cash retainer as well as disputing total fees of a little more than $61,000. He also alleged Walker did not follow instructions.
Tsigirlash, who could not be reached for comment prior to posting, had retained Walker in 2006 on some criminal matters and again in 2011, when he was charged in Niagara-on-the-Lake, Ont., with a series of fraud and possession of stolen property charges related to an alleged automobile “chop shop” there.
Tsigirlash claims Walker had approached him in a courthouse hallway suggesting Tsigirlash should hire him, saying “I am the man for you.” Tsigirlash told the court Walker wanted the $20,000 retainer in cash so police would be less likely to take the money as proceeds of crime.
Walker, through his counsel Robert Macdonald, an associate with Fogler Rubinoff, argued he never received a cash retainer and that the fees were reasonable for a highly complex matter involving more than 40 total charges of fraud and possession of stolen property.
“In my 45 years of practice, I have never had an account assessed or faced allegations of impropriety from a client,” says Walker. “I’m pleased that the court rejected Mr. Tsigirlash’s malicious and false allegations.”
The client did pay down the bulk of the fees and first raised concerns about the accounts four months after the final of six accounts had been sent to the client, well after the retainer had ended.
“I have carefully considered the evidence of Tsigirlash. In my view, his evidence was self-serving, contradictory, illogical and wholly unreliable,” Braid wrote in her decision.
“Walker was cross-examined regarding hours billed and the tasks completed,” the judge added. “Walker relied on detailed notes of his work when explaining the accounts and was able to justify and explain the time entries.”
Macdonald says the matter should serve as a strong caution to lawyers to ensure proper detailed notes of all actions taken on behalf of a client as well as strong financial accounting.
“What assisted Mr. Walker in this case was that his file was well documented,” Macdonald says. “None of us can anticipate that we’re going to face these sorts of malicious and false allegations from a client, but if it does happen you want to have your file there to substantiate the work you did, the instructions that you took and the information the client had when they gave you those instructions.”
Both sides in a class action case involving VIA Rail have been sent back to the drawing board with a litigation strategy template from the Ontario Superior Court.
|Jay Strosberg admits there isn’t much case law guidance on the individual issues phase of class actions.|
Calling the matter “a test centre for undeveloped but very important aspects of class action procedure” under the Class Proceedings Act, Justice Paul Perell ruled on an individual issues motion Nov. 16 in Lundy v. VIA Rail.
He gave both parties 30 days to consider and adapt his litigation strategy and if an agreement cannot be made in that time, he ordered a case conference where he will settle the plans.
“One might think that the matter of designing the individual issues phase of a class action is no big deal and that designing the individual issues phase pales in significance to the matters of certification, the common issues trial, and the settlement approval stages of a class action,” Perell wrote.
“However, one would be wrong in undervaluing the importance of the litigation plan for the final stage of a class action. The design of the individual issues phase has a substantial impact on achieving the goals of the class action regime of access to justice, behaviour modification, and judicial economy.”
In the issue before him, the parties could not agree about the litigation plan for the individual issues phase of the action and both presented strategies to the court. The 45 class members were all passengers on a VIA Rail train in early 2012 when it derailed near Burlington, Ont.
In mid-2014, VIA served offers to settle to each individual class member, ranging from $8,000 to $40,000 and the promise VIA would pay members’ legal fees and disbursements in an amount equal to 15 per cent of the settlement amount paid to the class member.
At that time, Perell ordered the parties to prepare individual issues litigation plans, an assessment of costs to date, and judgment on common issues of the certification order. He ruled that once the litigation plans were settled, VIA could then deliver the individual offers to settle. But the sides could not agree on those plans and Perell ordered they try one more time.
Jay Strosberg, partner at Sutts Strosberg LLP, says the individual issues stage of a class action is not common as cases generally settle beforehand. He says when that procedure isn’t agreed upon, there isn’t much guidance on how individual issues should be resolved.
“In one sense it is reassuring that there isn’t a lot of case law on this point, because it means that counsel have generally been able to come up with a plan they both agree with. In another sense, it would be helpful if there were more input from the judiciary about what types of procedures they feel are manageable for handling individual damages claims,” he says.
Strosberg says procedure should allow for class members to submit their claims without huge hurdles, while allowing the defence to also lead evidence and make its case.
“It is a tricky balancing act and one that requires a good deal of practical foresight,” says Strosberg.
“Perell took this opportunity to propose a plan of his own in which he underscored the importance of access to justice and judicial economy, which really should be the focus when coming up with a plan.”
Margaret Waddell, of Paliare Roland Rosenberg Rothstein LLP, says the rules under the CPA are purposefully broad to ensure an efficient process."
“If the parties can’t reach an agreement, then the court has tremendous discretion and latitude in creating a bespoke process for each case. Once a case reaches this stage of the proceeding, the efficiencies of the CPA really come home to roost,” she says.
“The parties can agree on their own efficient process, or if they can’t agree, then the court has the power to craft a procedure that works for the litigants in a way that best meets the objectives of access to justice, efficiency and proportionality for all the remaining parties.”
Update Nov. 24: Quote from Margaret Waddell corrected.
In what he called a “bizarre and lamentable” motion, an Ontario Superior Court judge has taken the “extra-extra ordinary” measure of awarding $70,000 in advance costs to an aboriginal woman seeking to bring a class action on behalf of the former students of Fort William Sanatorium School.
There’s evidence that aboriginal children who needed hospitalization for tuberculosis were sent to a sanatorium and schooled Fort William Sanatorium School, said Justice Paul Perell, but the school is not among the recognized residential schools under the Indian Residential Schools Settlement Agreement, a contract signed in 2006.
Henry is seeking to have the Northwestern Ontario school listed as a residential school under the agreement, but Canada argues the sanatorium, while residential, was a health facility and therefore the responsibility of a board of directors first, and later, the Province of Ontario.
Lawyers and non-profits refuse to take up cases like this one because of there is no established process to obtain remedies for students who went to schools like Fort William Sanatorium School. Getting those institutions recognized as residential schools is onerous and costly.
“It is a lamentable motion, because, for a variety of reasons, ‘nobody’ was prepared to provide legal services to Mrs. Henry, unless she obtained an advance costs award for the [request for direction]. At least 18 lawyers were asked to take the legal brief, but for a variety of reasons, they all declined,” Perell wrote.
“In the discussion below, I shall identify most of them by initials, because I do not wish to shame them, and because having regard to the entrepreneurial access to justice model that governs class proceedings, it is understandable, but sad, that all the lawyers declined the Sanatorium School RFD brief.”
Henry — who is 82-years-old, disabled, unemployed, and impoverished — could not by herself bring the request for direction under IRSSA. Edward Sadowski, a researcher who has helped up to 1,000 aboriginal claimants with respect to claims under the IRSSA, filed the request on her behalf but failed to obtain legal assistance to advance it.
The motion was “bizarre,” according to the judge, because the very question of who was bringing it was in dispute. Canada argued Sadowski, who is not aboriginal and did not attend a residential school, was the person bringing the application and seeking advance costs.
But Perell disagreed. “Mr. Sadowski did initiate the RFD, but it was never his RFD, and why he should be treated as if he were a busybody stirring up litigation, when he has no personal financial interest in having the Fort William Sanatorium School listed as an IRS and has spent 17 years helping claimants, totally escapes me,” he wrote.
“In any event, in my opinion, Mrs. Henry has done enough to show that she is impecunious and an advance costs award is her last resort to access to justice,” Perell added.
He ordered the federal government to pay Henry $70,000 in advance costs as well as the cost of the motion.
Christa Big-Canoe, legal director at Aboriginal Legal Services of Toronto, says Perell’s ruling is “a significant win.”
“It speaks to the need to recognize that things don’t always fit into a box laid out in a settlement agreement,” says Big-Canoe. “It speaks to recognizing there are more survivors of this type of colonial legacy and it will provide an opportunity for those survivors to at least have their day in court.”
Big-Canoe says aboriginal students were, at times, sent to sanatoriums for being unco-operative, deemed “insane,” or otherwise sick. In some cases, the residential schools they attended before going to a sanatorium would take their names off the attendance roll, leaving them with no record of having attended a recognized residential school.
In some cases, the students only ever attended sanatorium schools, and “atrocities” have taken place in those schools as well.
“It becomes a Catch 22; they’re not being recognized,” she says.
Big-Canoe says while unfortunate, it’s understandable that both private practitioners and non-profits like her organization are reluctant to take up cases like Henry’s. When a person is seeking to have a school recognized officially as an Indian residential school, there are huge disbursement costs as well as dozens of hours of work with no guarantee of success, she says.
From a non-profit perspective, “we would be putting out all that money and time and the reality is if the process isn’t going to accept the claimant’s application, it’s money that could have been used for a person who would fit within the claim parameters,” adds Big-Canoe.
According to Perell, the case is an example of a “pandemic” issue in class proceedings as well.
“In a problem which has become pandemic in class actions, class counsel are not much interested in small value cases,” he wrote. “The entrepreneurial model for class actions works wonderfully well for many cases, but actions for a declaration that might help a small group are not a success story for the class action regime. Support for the individual issues part of a class action is also becoming an access to justice problem.
“I am not to be taken to be critical of the 18 lawyers who declined Mrs. Henry’s brief. I also am not to be taken to be critical of the entrepreneurial model chosen by the Legislature. I am only saying that class actions are only a partial solution to serious access to justice problems,” Perell continued.
“The sad truth is that Mrs. Henry, despite the valiant efforts of Mr. Sadowski, cannot obtain access to justice because she is too poor to pay for it.”
Masturbating in a public space doesn’t necessarily constitute a wilful indecent act if the person doing it never intended for others to notice, an Ontario Superior Court Judge has found.
On Monday, Justice Kenneth Campbell set aside the conviction of a Toronto man found guilty of wilfully committing an indecent act because a lower court judge had assumed that just because others witnessed the act it meant the man had intended for people to see him or to offend them.
Counsel for the appellant argued his client, Paolo Novello, had tried to cover himself when undercover police officers spotted him masturbating in public places near schools, parks, and playgrounds.
“First, there is no legal presumption that, where an accused is engaged in some indecent act and is, in fact, observed by another person while engaged in that indecent act, the accused must, therefore, have wilfully engaged in the indecent act in the presence of the other person,” wrote Campbell, who noted a person might not know someone else is around.
“For example, an accused may engage in an indecent act in circumstances where he or she is not aware of the presence of another, and is not aware that he or she is being observed by another. In such circumstances, it would be illogical for a court to presume that, having been surreptitiously observed by another while engaged in an indecent act, the accused must have wilfully performed the indecent act in the presence of another person.”
Criminal lawyer Daniel Brown says cases of indecent exposure don’t arise often and that when they do, it seems like there has been confusion over what the jurisprudence says about the presumption of wilfulness.
“This decision by Justice Campbell clarifies any confusion that might have otherwise existed,” says Brown.
“If you are being seen, maybe a judge can conclude that was your intention, but it isn’t something that should necessarily flow from being seen,” he adds.
In R. v. Novello, the trial judge concluded the appellant “positioned himself in a somewhat clandestine manner and was observed to place both hands in his front pants pockets close to the groin area and vigorously move his hands back and forth continuously as the front of his pants tented and he paced back and forth in an excited state.”
Campbell, however, ordered a new trial in the case after setting aside Novello’s conviction.
“Instead of carefully reviewing the evidence in the case in order to determine whether or not the Crown had, in fact, established that the appellant possessed the specific intent of wilfulness required by s. 173(1) of the Criminal Code, the trial judge erroneously convicted the appellant based upon a perceived (but non-existent) legal presumption that the necessary wilfulness was established by the fact that his acts of masturbation were in fact witnessed by another,” he wrote.
Plaintiffs’ lawyers pursuing a class action for a global price-fixing conspiracy will have to get formal opt-in from class members abroad, if yesterday’s jurisdictional decision stands in Airia Brands v. Air Canada.
|Charles Wright says he disagrees with the court’s analysis on jurisdiction.|
Despite a possibly “real and substantial” connection to Canada — the test established in the Supreme Court of Canada’s Club Resorts Ltd. v. Van Breda decision — defence counsel successfully argued that Ontario’s courts had no jurisdiction to include in the proceeding foreign class members who had not specifically opted in, defined as “absent foreign claimants.”
Armed with reams of expert opinions, lawyers for the airlines convinced Leitch that foreign courts in many of the 100-plus countries from which plaintiff class members derived would not respect the Van Breda test giving Canadian courts jurisdiction.
As a result, nothing would prevent a class member in one of those other countries from re-litigating the matter and subjecting the defendants to double jeopardy.
As the decision states: “I am satisfied that jurisdiction over class members can only be established if they are present in Ontario or have consented in some way to the jurisdiction of this court. I therefore, find that this court does not have jurisdiction simpliciter over absent foreign claimants.”
It’s a decision that stands in sharp contrast to Van Breda, where Canadian courts were able to claim jurisdiction, for a case involving injuries on a Cuban resort, based on a test establishing “real and substantial connection” to Canada.
Charles Wright, the Siskinds LLP lawyer who launched the class action in Canada, says he disagrees with the court’s analysis on jurisdiction, which finds that the plaintiffs connection to Canada is not strong enough to account for the possibility of double recovery.
Wright says that the decision essentially shuts the door to the most likely avenue for justice for foreign claimants on the off chance they might pursue an alternative, and highly unlikely, avenue for justice.
“We believe our courts in Canada follow the rules of law and provide justice,” he says, “and if other courts abroad, some other day, choose to find that that’s not so and won’t respect the judgment, that’s really a decision for them to make and that doesn’t impact on whether this court properly takes jurisdiction.”
Wright says the decision on jurisdiction will most likely be appealed. Even if it’s upheld, though, it will not prevent plaintiffs’ lawyers from sending out notices to potential foreign claimants to get formal opt-in from them.
Jurisdictional issues aside, Wright suggests the defendants’ real strategy — one that has proven successful so far — is to drag the case on and make it more difficult for class members to participate, in the hopes of reducing liability for their clients.
“Our argument was that this was a fairly clear effort to avoid liability to these people. It wasn’t really about the potential for double jeopardy or that they shouldn’t have to face a multiplicity of lawsuits. It was about the desire to not have to compensate some people at all.
“The defendants hope is that maybe people won’t see or understand the notice and won’t respond to it, and therefore won’t opt in,” says Wright. “So the real hope is — which is what we argued and what we will argue on appeal — is that they will avoid any liability to those people.”
Ultimately, however, Wright says the court’s decision on jurisdiction may backfire on the defendants:.
“If, in fact, the result of this decision is a notice that goes out that causes people to see them in 20 different jurisdictions, and they have to obtain counsel in all of those places and defend themselves, it’s not actually a good result for them.”
When bringing a motion to set aside default judgment defendants better have good evidence and respond quickly, according to a recent Ontario Superior Court decision.
In Marina Bay Sands Pte, Ltd. v. Jian Tu aka Tu Jian, Justice Sean Dunphy wrote on Aug. 7:
The Superior Court is not a sandbox playground where ‘do-overs’ can be expected on demand. The stakes are high and this is no time to keep powder dry. If there is any reason the judgment ought not to stand, any and all reasons must be diligently and properly placed before the court.”
In the Marina Bay case, the defendant, Jian Tu, created a claim to set aside default judgment on what Dunphy called “two slender straws” — a procedural argument based on the exclusive jurisdiction clause in the underlying contract in favour of Singapore laws and courts, and a “bald, second-hand assertion” of failure to receive the statement of claim by means of the substituted service authorized by an order of the court.
Tu brought a motion to set aside the default judgment dated June 28, 2014, and to strike the statement of claim or for leave to file a statement of defence.
Marina Bay, a Singapore hotel, issued the statement of claim on Feb. 18, 2014, for amounts owing under a credit agreement between it and the defendant. The amount claimed was the Canadian dollar equivalent of SGD $9,940,683, plus prejudgment interest arising from advances made in February 2013 that the defendant had failed to repay.
The debts arose from markers given to support gambling at the plaintiff’s casino. A credit history obtained by the plaintiff showed Marina Bay was not the only casino the defendant has obtained credit from — there was a list of other casinos in Ontario and abroad.
Marina Bay had difficulty serving the statement of claim. Three unsuccessful attempts at service were made between March 6 and March 15, 2014, at an address in Markham, Ont. The process server received no reply.
Several other attempts were made to the same address.
On June 28, 2014, default judgment was obtained in the amount of the Canadian-dollar equivalent of SGD $11,127,028.62 plus $2,000 for costs, both amounts bearing post-judgment interest at the rates of 13 per cent and three per cent respectively.
Marina Bay proceeded to register writs of seizure and sale on July 21, 2014, and made a number of attempts to serve the judgment upon Tu via regular and registered mail and courier on several dates from July 23, 2014 to Jan. 2015.
Tu claimed he did not reside at the Markham property during the time the statement of claim was said to be delivered.
The case raised the following issues to be determined:
a) Is the existence of an “exclusive jurisdiction” clause in the contract underlying the default judgment sufficient grounds to warrant setting aside a default judgment?
b.) Does a bare hearsay allegation that the defendant failed in fact to receive a copy of the statement of claim warrant the exercise of the court’s discretion to set aside default judgment under Rule 19.08(1) of the Rules of Civil Procedure?
Dunphy said he did not accept “the evidence that the defendant in fact had no notice of the claim.”
He noted that Marina Bay has been unpaid for almost three years on its liquidated claim, and “had to engage lawyers in Ontario to track down the defendant and has now found property that he owns and has secured a judgment.”
Bald, hearsay statements to that effect which have been made without explanation of the circumstances carry little weight in these circumstances. . . . Secondly, there is a great distinction to be drawn in my mind between an irregularly obtained default judgment and a properly obtained judgment following substituted service in accordance with a validly-obtained order of the court. In the latter case, the judgment is regular. While the interests of justice may well favour setting such a judgment aside if credible evidence is led to establish that the alternative to personal service employed was actually ineffective, such is not automatically the case. Even if I accepted the defendant’s assertion (which I do not), the defendant would have still to explain his delay in responding to the judgment and to provide the court with some indication that he has a bona fide defence on the merits."
Dunphy dismissed the motion with costs.
Subscribe to Legal Feeds
- Jennifer Brown
- Patricia Cancilla
- David Dias
- Mallory Hendry
- Yamri Taddese
- Gabrielle Giroday
- Gail J. Cohen
- Jim Middlemiss
- Karen Lorimer