[6] For the purposes of this Motion, it is necessary only to note that the action brought by the Plaintiff arises out of the settlement of a tort action for personal injuries allegedly caused as a result of a motor vehicle accident, and a parallel claim for Statutory Accident Benefits. Both the Defendant Warren, who is a solicitor, and the Defendant Jhuti, who is a licenced paralegal, were involved, although their involvement was different. Jhuti, not being a solicitor, could not act for the Plaintiff in the tort action, although she could act for him on the Statutory Accident Benefits claim.
[7] In substance, it is alleged by the Plaintiff that the Statutory Accident Benefits claim was settled for $15,000, while he was told it was settled for $6,000. He alleges that the tort claim was settled for $22,500, while he was told it was settled for $18,000. The Plaintiff alleges that this was part of a scheme by one or both of the Defendants to pocket the difference in the amounts of the actual settlements and the amounts represented to him.
[19] To me, it is inconceivable that either Mr. Warren or Mr. Pickard could have believed that the payment to Ms. Jhuti was not relevant, having regard to the allegations made in the case. Fundamentally, it is alleged by Mr. Sawah that he was defrauded by Mr. Warren, Ms. Jhuti or both of them, as a result of a misrepresentation of the amount of the settlement. The fact that Ms. Jhuti was paid a substantial amount of money out of the settlement proceeds would be highly relevant. Mr. Warren says he was counsel for Mr. Sawah, and the contingency fee was his. The fact that a large sum was paid to Ms. Jhuti is certainly suspicious. Of course, it would be open to them to provide whatever explanation they chose for the payment. However, it cannot be realistically be asserted that the documents, and particularly the cheque to Ms. Jhuti, are not relevant.
[20] The explanation is particularly suspicious, in my view, in view of the way in which the documents were ultimately disclosed. At the very least, the candour of Mr. Warren and Mr. Pickard is subject to serious question.
[21] The issue, then, is whether an order pursuant to Rule 59.06 (2) should be made. Under that Rule, the Court has a discretion to set aside or vary an order on the ground or fraud or of facts arising or discovered after the order was made.
[22] In this case, there is no doubt that there are facts that were discovered by the Plaintiff after my order was made. The relevant documents that would have disclosed a payment of over $9,000 to Ms. Jhuti were not disclosed until April, 2016. Counsel for the Plaintiff acknowledged, during argument, that it would have to be shown that the non-disclosure was deliberate in order to justify an order under Rule 59.06 (2).
[23] I do not accept Mr. Warren’s argument that the Plaintiff should have been able to figure out that a payment was made from what was disclosed in the report of Mr. Warren’s expert. It was certainly not clear from the expert’s report that a payment of over $9,000 was made to Ms. Jhuti, and that it was labelled “Sawah Costs”.