http://canlii.ca/t/gkx8z

[22]           The premium charged by the Defendant may or may not be justified. The settlement achieved by the Defendant appears to have been advantageous to the Plaintiff, but the parties dispute exactly how advantageous the settlement should have been to warrant a premium on the bill.

[23]           In any case, the obscuring of the premium, combined with the Defendant’s refusal to produce copies of its dockets and its trust and client ledgers, constitutes the kind of special circumstance that section 11addresses. It is one thing to charge a premium for success where this billing is properly disclosed; it is quite another thing to hide the fact that a premium has been charged. It will be for the Assessment Officer to determine whether the Defendant’s bill is or is not too high.

http://canlii.ca/t/gkwmj

[92]                 The evidence against Ms. Jhuti is compelling.  Even on the basis of a paper record, it seems quite clear that she falsely represented to Mr. Sawah the settlement amounts of both the Accident Benefits claim and the tort claim.  Her explanations for her actions are riddled with improbabilities.  However, since this matter must proceed to trial in any event, I will refrain from making any actual finding of fraud against her.  Her culpability will be determined at trial.

http://canlii.ca/t/gjxlk

[6]          The statement of claim was issued on June 27, 2008 and served shortly thereafter.  The action proceeded through the pleadings stage.  Affidavits of documents were exchanged.  Examinations for discovery for both sides were conducted on April 29, 2009.  The plaintiff underwent a defence independent medical examination by an orthopedic surgeon on May 25, 2010.  The action proceeded to an unsuccessful mediation on September 30, 2010.

[7]          This motion is supported by an affidavit from one of the plaintiff’s lawyers whom I will call lawyer D.C..  This affidavit is 83 paragraphs long and has 71 exhibits.  The affidavit describes in great detail the history of the action and the correspondence which the plaintiff’s lawyers sent and received in the course of this action.  Much of this correspondence deals with efforts which the plaintiff’s lawyers made to collect information and documents in support of the plaintiff’s claim.

[8]          Lawyer D.C. says that after the mediation failed he intended to set this action down for trial but that owing to inadvertence, he failed to diarise a deadline for doing so as was his standard diarizing practice at the time.  The action was never set down for trial.

[9]          On September 20, 2010 the court registry issued a status notice in this action.  Lawyer D.C. says that neither her nor his form received a copy of this status notice and therefore were unaware of any pending dismissal of this action.  This is disputed.

[23]      Lawyer D.C. failed to set this action down for trial.  He offers several explanations for this failure.  First, he says that he failed to diarise a deadline for setting this action down for trial.  Secondly, he says that between 2009 and 2012 he had a case load of from 250 to 300 files in addition to numerous other responsibilities at his firm.  It took him some time to realize that this file load and his other firm responsibilities were completely unsustainable.  He eventually requested and got permission to reduce his file load and transfer files to other lawyers.  He does not say just when this happened.  He does say that between January 2011 and September 2013, he overlooked prosecution of this action in favour of other priority issues.  Finally, lawyer D.C. says that he always intended to proceed with the plaintiff’s claim.

[24]      The plaintiff himself has sworn an affidavit in support of this motion.  He states that it has always been his intention to proceed with this action.  He also says that he was in contact with the office of lawyer D.C. from time to time and understood that his action was proceeding in the normal course.  Finally, he says that he has instructed his lawyers to proceed with a motion to set aside the registrar’s dismissal order.

[25]      To repeat myself, I am satisfied that his action was satisfactorily prosecuted until just after the failed mediation of September 30, 2010.  There is no evidence that lawyer D.C. or anyone at his firm ever made a conscious and deliberate decision not to prosecute this action.  There is no evidence that the plaintiff ever instructed his lawyers not to prosecute this action.

[26]      Lawyer D.C. has explained the delay in the prosecution of this action in the limited sense that I now know why this delay occurred.  However the overall delay is so great that the explanation is not fully satisfactory. I therefore conclude that the plaintiff has not fully met the first Reid criterion.

Balancing Exercise

[52]      Finally I must balance the interests of the parties.  If this motion is dismissed and the allegations in the statement of claim are true the plaintiff will suffer prejudice.  Because the registrar dismissed this action with costs, if this motion is dismissed the plaintiff must pay those costs to the defendant.  Since this action is almost ready to be set down for trial those costs would be substantial.  In some cases where the court has dismissed a motion like the present one, the court has said that the plaintiff will not be without a remedy because the plaintiff can sue her or his negligent lawyer.  In other cases the courts have cautioned against speculating as to whether the plaintiff has such a remedy.  At the very least, if the plaintiff’s motion is dismissed and he is left to start a new action, the day he receives compensation will be delayed for several years.

[53]      I must also consider whether the defendant will be prejudiced if this motion is granted.  In that event, I am of the view that the defendant will not be prejudiced because on the evidence before me he can still present his case at trial.

Conclusion

[54]      This motion is therefore granted.  The registrar’s dismissal order of January 6, 2011 is set aside.  The time for the plaintiff to set this action down for trial is extended to 90 days from the final disposition of this motion.  This may seem like a very generous time extension.  However, my experience in other motions has been that even diligent lawyer experience considerable delays in getting formal orders issued and entered by court staff.

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.