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.