Author Archives: Admin4

http://canlii.ca/t/gjgsp

recently made an assignment into bankruptcy and finds himself as a defendant in this and at least one other lawsuit brought by the plaintiff for several million dollars.

[2]               In all of the actions brought by the plaintiff, their claim is for the return of money which they loaned to the defendant in his practice as a personal injury lawyer and in essence was to be used to pay for plaintiff’s disbursements such as expert reports.

[3]               There is a separate loan for each client of Mr. Ferro’s, for whom Mr. Ferro sought funding. Each loan was between the plaintiff and Mr. Ferro personally.

[4]               Each loan was the subject of a separate loan agreement.

[5]               The sections of the loan agreements that the court has to deal with are the same for all six of the loans which are encompassed by this action.

[6]               A summary judgment motion was brought before Justice Hambly on September 21, 2012.

[7]               Justice Hambly gave Summary Judgment on two loans known as Badini and Bell. Another loan known as Petit was subsequently paid. The only matter outstanding on those three loans is the issue of costs.

[8]               Justice Hambly further ordered that the loans known as Fraser, Bilotta and Ryckman would proceed to the trial of an issue.

[9]               The issue that Justice Hambly ordered to be tried, was the meaning of “transfer of the client’s file” in the loan contracts.

[71]           Based on the totality of the evidence, and also the lack of evidence from Mr. Ferro, I find Mr. Ferro’s position throughout to be disingenuous and an extremely sad commentary on how a senior member of the bar dealt with a corporation that he sought out and contracted with to allow him to carry on his personal injury practice.

[72]           As a result of my reasons the plaintiff shall have judgment against the defendant as follows:

A.               the defendants shall pay to the plaintiff the amount of $110,478.26 on the Fraser loan which bears interest at the rate of 19.5% compounded monthly or the effective annual rate of 21.34% commencing June 15, 2015

B.                 the defendant shall pay to the plaintiff the amount of $103,579.69 old on the Bilotta loan, which bears interest at 19.5% compounded monthly or the effective annual rate of 21.34% commencing June 15, 2015

C.                 the defendant shall pay to the plaintiff the amount of $29,796.51 owned on the Reichman loans, which bear interest at the rate of 21% compounded monthly or the effective annual rate of 23.14% commencing June 15, 2015

D.               the defendant’s counterclaim is hereby dismissed

E.                 the defendants shall pay the plaintiff costs for bringing this action to enforce its 6 loans.

http://canlii.ca/t/gjg80

[1]          The plaintiff brought this action for damages arising from a motor vehicle accident.

[106]           While it is ultimately true that this case was finished in 8 trial days, the point is that it never should have been scheduled for that long.  Had counsel applied their minds to their witness lists and documents in good faith, as required by Stinson J., this case should have taken just a few days.  Another trial could have been scheduled and heard in the second week.  Playing uncivil, tactical, inappropriate, old-school, trial by ambush games like: threatening to require proof of obviously valid records, holding back important documents until the last second, failing to fulfil undertakings until the eve of trial, delivering new expert’s reports during the trial, saying untrue things to counsel opposite (whether knowingly or not), failing to prepare examinations in advance to “wing it” at trial, refusing to agree to the admissibility of relevant documents while requiring changes to be made to irrelevant ones, refusing to share costs of joint expenses, refusing to cooperate on court ordered process matters, are all wrongful.  Most of these things have been considered unprofessional sharp practice and inappropriate for decades. 

[107]           In light of the defendant’s failure and unwillingness to comply with the order made by Stinson J., its late disclosure of important documents, counsel’s uncivil conduct leading up to and at the trial, and the repeated failures of the defendant’s counsel to comply with the directions and orders of the court, it is appropriate for the court to exercise its discretion to deny the successful defendant its costs.  The uncontested evidence of misconduct by the defendant’s counsel is good reason to exercise the court’s discretion to depart from the normal rule that costs presumptively follow the event.

[108]           In all, as a result of the manner by which the defendant’s counsel prepared for and presented this case at trial, with his client’s assent, the defendant is being deprived of a $100,000 costs award to which it would otherwise have presumptively been entitled.

http://canlii.ca/t/ghk4h

[10]           It is counsels’ duty to ensure a fair hearing.  That means that process issues like production and scheduling are to be approached in a cooperative basis to reduce cost and aid the most expeditious resolution on the merits available.  The commentary under Rule 5.1-1 of the Rules of Professional Conduct of the Law Society of Upper Canada provides:

The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected. [emphasis added]

[11]           In Authorson (Litigation Guardian of) v. Canada (Attorney General) 2002 CarswellOnt 1724

A party is entitled to a fair opportunity to present its case in a focused way.  Counsel, as officers of the court, are expected in furthering the best interests of their clients to present their case on its merits, its true merits.

[12]           Neither side focused on presenting the case in a focused, efficient way that was proportionate to the amounts in issue.  Neither side, even after being cajoled by the court, simply sat down and discussed the problem openly to work through it.  Neither worked towards a fair, expeditious, proportionate resolution.  It was the same old same old.  The culture shift required by the Supreme Court of Canada requires change in how cases are handled.  It is not good enough for counsel to just make demands in nasty emails while ignoring their own obligation to be available to produce, talk, meet, and cooperate to make issues soluble fairly and quickly.   It is no longer good enough for insurance company lawyers to sit back and just wait for clerks and juniors to fill in their tick boxes on forms before dealing with the merits of an issue.  At every step along the way, counsel are required to apply professional judgment to clear the way for the resolution of issues as quickly, cheaply, and proportionately as possible.  Counsel are expected to bring their clients to such resolutions or to bring the issues to the court for early, proportionate, fair hearings.

[13]           The plaintiff should have openly and quickly disclosed the structure of the company and provide enough information to allow the defendant to fairly make the decision of whether the plaintiff ought to be considered an employee or an owner of the company.  The defendant, for its part, ought to have exercised the judgment to make a $10,000 decision and not turned the issue into an inquiry fit for a $5 million case.  There was no issue of principle at play.  People just needed to sit down and talk to each other instead of talking at and around each other.

[14]           It follows that I am disinclined to award costs to either side.

[15]           The culture shift is trying to move a mountain.  It will happen one shovelful at a time.

[16]           No costs.

http://canlii.ca/t/ghh8h

[5]        For the reasons that follow, I decline to grant leave to the plaintiffs to restore the action to the trial list.

[6]        The motion materials filed by the plaintiff are skeletal and devoid of the kind of detail required to satisfy the court that “…there is an acceptable explanation for the delay and that, if the action was allowed to proceed, the defendant[s] would suffer no non-compensable prejudice” (Nissar v. TTC, 2013 ONCA 361 (at para. 31).  And even if I apply the test set out in 1351428 Ontario Inc. v. 1937598 Ontario Ltd., 2011 ONSC 4767 (CanLII), 2011 ONSC 4767 (S.C.J.), as Mr. Wagman suggests might be done, there is nothing before me to address the questions of whether  the delay was “intentional”, whether it is “excusable”, and whether the presumption of prejudice arising from the delay can be rebutted.  Indeed, all that I know is that the action was struck off the trial list and that, according to plaintiffs’ counsel, the “only outstanding matter from the plaintiffs’ perspective is the requirement for a further expert’s report on the issue of damages” (see:  December 23/14 affidavit of Allan S. Halpert).

[7]        Why was the Certification Form not submitted before May 31/13?  Was it a matter of lawyer’s inadvertence or client instructions?  Was it a slip or decision taken deliberately?  Why were no steps taken to restore the action to the trial list before the Status Notice issued?  Why is there need for a further expert’s report on damages, at this time, and why could such report not have been delivered before now?  Are all of the plaintiffs and the plaintiffs’ witnesses available?  Are the plaintiffs ready, willing and able to proceed?  Have the documents/has the evidence been preserved?  There is not a scintilla of evidence before me that addresses (if not answers) these questions and, in a case such as this (with no examinations for discovery having been conducted), addressing whether the parties/documents/witnesses are available is more important than it might otherwise be.  The evidence of the parties has not been memorialized in any way.  

[8]        The action arises out of events that occurred in 2008, some 7 years ago.  Why have the plaintiffs failed to move with alacrity?  Why has neither of the plaintiffs sworn an affidavit?  Their information is not incorporated by reference, save as it relates to the unexplained need for an expert’s report, in the affidavit of Mr. Halpert.

[9]        It is true, as Mr. Wagman points out, that the defendants have not said that they will suffer non-compensable prejudice.  But the fact that they haven’t isn’t fatal to their opposition to the motion.  The plaintiffs have failed to lead any evidence as to the explanation for the delay or as to how the presumption of prejudice–given the passage of time and the presumed fading of memories (and the like)–might be rebutted.  The plaintiffs haven’t even made the bald statement (directly or through Mr. Halpert) that, from their perspective, the defendants will suffer no non-compensable prejudice.

[10]      All that is before me is a claim commenced some 7 years ago, in respect of which the plaintiffs’ affidavit of documents was served some 4 years after the action was commenced (with no explanation for the delay), mediation was conducted and, inexplicably, efforts to reinstate the action were not made until approximately 1 year after the action was struck from the trial list.  I cannot know that “it is fair and just” to restore the action to the trial list (see:  P & J General Contracting Inc. v. Taurasi Holdings Ltd., 2014 ONSC 2725 (CanLII), at para. 8) because the evidence adduced by the plaintiffs does not permit me to engage in the analysis necessary to reach that conclusion.

http://canlii.ca/t/gfzgg

Summary:

KHAN – Professional Misconduct – Findings and Penalty – Based on an agreed statement of facts (ASF) and the Lawyer’s admission, he was found to have engaged in professional misconduct as alleged – The particulars of the misconduct were very serious and included: a failure to properly supervise his staff which resulted in the false endorsement of a number of settlement cheques, extensive and continuing failure to maintain proper books and records, including the failure to deposit hundreds of thousands of dollars into trust and significant shortages in his trust accounts, as well as a number of instances of failure to conduct himself with integrity by falsely executing releases and charging his client for disbursements for which he had already been paid by the insurer – Mitigating factors were that the Lawyer: co-operated with the Society’s investigation; entered into the ASF; consistently admitted his wrongdoing, and indicated a desire to address his deficiencies; made restitution to his clients for the overcharging of the disbursements; and accepted extensive remedial terms, thus showing insight into the problems in his practice – The Lawyer was suspended for six months – Extensive restrictions and conditions were ordered with respect to his resumption of practice – The Lawyer was to pay costs of $15,000.

[7]           The First Application arose out of two client complaints received by the Society in 2008 about the Lawyer relating to his personal injury practice.  They complained about the Lawyer’s handling of their settlements.  The Lawyer had deposited settlement cheques into a bank account in the name of Thinkkings Inc.  Thinkkings was a company used by the Lawyer’s brother for various business ventures, including a statutory accident benefits practice.

[11]        The Second Application arose out of a complaint against the Lawyer regarding his representation of his clients in their tort and accident benefit claims relating to a motor vehicle accident.  In connection with the settlement of their tort action, the complainants alleged that the Lawyer acted dishonourably by signing their names on a full and final release and that he also misled them about the settlement.

[14]        Based upon the Agreed Statement of Facts and the admission of the Lawyer as described above, the panel made a finding that the Lawyer had engaged in professional misconduct as alleged.

[16]        The particulars of the misconduct in this matter are very serious.  The particulars include a failure to properly supervise his staff which resulted in the false endorsement of a number of settlement cheques, extensive and continuing failure to maintain proper books and records, including the failure to deposit hundreds of thousands of dollars into trust and significant shortages in his trust accounts, as well as a number of instances of failure to conduct himself with integrity by falsely executing releases and charging his client for disbursements for which he had already been paid by the insurer.

http://canlii.ca/t/gg347

http://canlii.ca/t/gh81f

[26]           Having reviewed Mr. Ferro’s affidavits filed in support of the ex parte service motions, I consider the conduct of plaintiff’s counsel to be troubling on its face.  Subrule 37.07(2) permits a motion to proceed without notice “where the nature of the motion or the circumstances render service of the notice of motion impractical or necessary ….”  As a matter of common practice, motions relating to service (particularly substitutional service) proceed on an ex parte basis.  However, in this case, at the time that the motion for substitutional service on Mr. Volpini was brought in July 2012, plaintiff’s counsel was well aware that Paterson, MacDougall had been counsel for Mr. Volpini and Sherwin-Williams in the related Mallett action, which had settled within the previous month.  In those circumstances, I see no obvious justification for failing to notify Paterson, MacDougal of the motion, or inquiring as to whether they would accept service on Mr. Volpini, as they had in the Mallett action.

[27]           I find even more troubling the conduct of plaintiff’s counsel relating to the subsequent ex partemotion to validate service on Sherwin-Williams.  In that case, Mr. Ferro’s firm had been placed on notice that Sherwin-William and Mr. Volpini had retained Paterson, MacDougall with respect to the Steele action itself.  Plaintiff’s counsel also had notice that the defendants were contesting the effectiveness of service.  In the face of that, I see no obvious justification for the failure by plaintiff’s to notify Paterson, MacDougall of the motion or to advise the court of the defendants’ position on the issue of service, given the requirement for full and frank disclosure of all material facts in subrule 39.01(6).

[28]           During oral submissions, I asked special counsel for the plaintiff to address the foregoing concerns, which had been raised by counsel for the moving parties.  He responded that counsel for the moving parties had the opportunity to cross-examine Mr. Ferro on his affidavits, but had not done so.  In that regard, he argued the court should not draw adverse inferences relating to the conduct of Mr. Ferro and his firm in the absence of an opportunity for Mr. Ferro to provide an explanation on cross-examination.

[29]           To the extent that I make findings relating to the conduct of Mr. Ferro and his firm, I agree that I am entitled to take into account the fact Mr. Ferro was not cross-examined on his affidavits.  However, in my view, that fact does not provide a complete answer with respect to any adverse findings I might otherwise make about his conduct.

http://canlii.ca/t/ggzpr

http://canlii.ca/t/gh7bb

[27]      I note that there were two lawyers, from the same firm, who addressed the plaintiff’s claims.  I have referred to them, collectively, as plaintiff’s counsel.  Both advanced the plaintiff’s claims and both erred in failing to set the action down in a timely fashion.  But, in all and in my view, the advancement of the plaintiff’s claims here eclipses the errors made.  Why do I say this?

[28]      The plaintiff has explained the litigation delay and the failure to set the action down for trial (the first two Reid factors), as required.  The trial record was served and, even after the trial record was served, positive steps were taken to move this action forward.  Until late November/10, I cannot say that this action languished.  And while the explanation proffered for the delay from late 2010 until 2013 (when a motion date was obtained) has a few flaws (I accept that the action may have “fallen out of [counsel’s] tickler system” as suggested, but why was there a delay in responding to defendant’s counsel’s letters?), the plaintiff’s delays until October 29/10 are few.  There were a few bumps in the road (such as the rescheduling of the plaintiff’s examination for discovery and the cancellation of mediation) but litigation is seldom conducted without any bumps, including some reasonable delays.  Further, and in any event, there is no evidence before me to suggest that a deliberate decision was made by plaintiff’s counsel or by the plaintiff to fail to advance the litigation towards trial (and, indeed, the steps taken throughout negate that notion). 

[29]      I acknowledge, however, that the motion was not brought promptly (as was argued).  In respect of the third of the Reid factors, plaintiff’s counsel fails.  I understand counsel’s confusion about the trial record but it only takes counsel so far.  Even if it was thought that the dismissal Order was made in error, the dismissal Order ought to have been addressed before it was.  Two years passed and reminders were sent by counsel for the defendant, to little avail.  Noteworthy, though, is the fact that defendant’s counsel did not choose to speak with plaintiff’s counsel by phone.  While I am not faulting defendant’s counsel, I do find it curious that, in a file that had progressed as much as this one had and in respect of which a trial record had been served (if not filed), the parties resorted to the exchange of letters, only. 

http://canlii.ca/t/ggndn

[35]      Ms. Blake contends the trial judge improperly refused to consider the following medical reports: (i) Designated Assessment Centre reports prepared by Dr. Scott Garner, a physiatrist dated August 14, 2003 and June 1, 2005; (ii) an independent physiatry assessment report dated October 2, 2006, prepared by Dr. A. Ghouse; (iii) an April 4, 2003 report prepared by Dr. Keith Meloff, a neurologist; and, (iv) three reports prepared in 2003 by Maureen Ward, an occupational therapist.

[36]      Dominion submits there was no misunderstanding during the trial about the use parties could make of the documents in exhibit 1. Further, Dominion argues that Ms. Blake controlled the witnesses whom she could call in support of her case and, in the result,failed to call Drs. Garner, Ghouse and Meloff, even though it was open to her to do so.

Chronology of events

[37]      This 10-day trial was conducted in three tranches in May, June and December of 2012. On the second day of trial, Ms. Blake’s counsel, Mr. Ferro, tendered as an exhibit a two-volume Accident Benefits Brief that was marked as exhibit 1. At para. 184 of his reasons the trial judge recounted the directions he had given about exhibit 1: