HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission Commission
-and-
Anne Toneguzzo Complainant
-and-
Kimberly-Clark Inc. Respondent
INTERIM DECISION
Adjudicator: David J. Mullan
Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
APPEARANCES
Ontario Human Rights Commission ) Amyn Hadibhai, Counsel ) and Richard Miller, Student-at-Law
Anne Toneguzzo, Complainant ) Joe Toneguzzo
Kimberly-Clark Inc., Respondent ) Richard J. Nixon, Counsel
Corporate Respondent ) Wanda Shreve, Counsel
INTRODUCTION
1The respondent, Kimberly-Clark Inc. ("Kimberly-Clark") has moved that I recuse myself from the adjudication of this complaint on the basis of a reasonable apprehension of bias. It has also moved for the appointment of a substitute adjudicator who is not participating directly or indirectly in litigation or proceedings against Manulife Financial ("Manulife") or Kimberly-Clark.
BACKGROUND
2The Complainant in this matter is alleging that Kimberly-Clark, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H-19 ("Code") infringed her right to be free from harassment in the workplace because of disability and her right to be free from reprisal after seeking accommodation.
3From the pleadings, it is clear that Kimberly-Clark has a contractual relationship with Manulife. Manulife provides services to Kimberly-Clark under an Early Intervention Services Agreement. Those services include the assessment of the condition of employees of Kimberly-Clark who have made sick leave or short-term disability benefit claims under Kimberly-Clark's self-insured benefit plan. Under a separate agreement, Manulife is also Kimberly-Clark's long-term disability policy carrier.
4Manulife is not at present a party to these proceedings. However, the pleadings filed by the Commission reveal that Manulife played some role in relation to the events giving rise to this complaint. Kimberly-Clark relied on the services provided by Manulife under the Early Intervention Services Agreement in dealing with the Complainant's health problems and request for accommodation. Subsequently, Manulife's role as Kimberly-Clark's long-term disability policy carrier came into play in relation to the Complainant though it is a matter of contention on the part of Kimberly-Clark whether the issue of long-term disability is properly part of this complaint.
5Included in the Commission's pleadings (at para. 56) is an allegation that "any action or omission by ManuLife [sic] is the responsibility and liability of the Respondent".
6In its pleadings, at para. 19, Kimberly-Clark has foreshadowed a motion to strike allegations in the Commission's pleading that:
(a) relate to Manulife;
(b) relate to events that occurred after March 1, 2001, the date of the Complaint; or
(c) were not raised in the Complaint.
The pleadings also reveal that Manulife's involvement in this matter occurred both before and after March 1, 2001.
7In the event that the motion to strike is not successful, Kimberly-Clark has foreshadowed yet another motion to the effect that Manulife be given notice of this proceeding and an adequate opportunity to respond.
8Section 39(2) of the Code provides that the parties to any proceeding before the Human Rights Tribunal of Ontario ("Tribunal") include "any person appearing to the Tribunal to have infringed the right". Section 39(3) goes on to state:
A party may be added by the Tribunal under clause (2)(d) at any stage of the proceeding upon such terms as the Tribunal considers proper.
9From these facts, it is inevitable that, at some point, the Tribunal will have to consider and make rulings concerning the actions and status of Manulife, and may even have to rule either on a motion by Kimberly-Clark or of its own initiative whether Manulife should be added as a party to this proceeding.
10I became aware of Manulife's connection with this proceeding when I read the pleadings in preparation for a pre-hearing conference call. At that point, I instructed the Registrar to inform the parties that my spouse was a shareholder in Manulife and that I was acting as a consultant to plaintiffs in a class action suit against Manulife. As instructed, the Registrar informed the parties by letter dated November 30, 2004 and asked them to raise any concerns about my continued participation as adjudicator by December 6, 2004.
11In their responses to that letter, counsel for both the Commission and Kimberly-Clark stated that they had no concern with the fact that my wife was a shareholder in Manulife. Counsel for the Commission also intimated that he had no concern with my involvement in the class action suit against Manulife. However, counsel for Kimberly-Clark requested more information about that class action suit and my involvement in it.
12On December 2, 2004, in response to that request and again acting on my instructions, the Registrar informed the parties that I was a non-witness consultant to the plaintiffs in Mandeville et al. v. Manulife in the Ontario Superior Court. That prompted counsel for Kimberly-Clark to request more details as to the nature of the services that I was providing.
13On December 14, 2004, the pre-hearing conference call took place and I informed those taking part (counsel for both Kimberly-Clark and the Commission, and the Complainant's spouse, representing the Complainant) that the solicitors for the plaintiffs in the class action suit had instructed me not to provide further details as to the nature of the consulting services that I was providing on the basis that that information was the subject of solicitor/client privilege.
14Counsel for Kimberly-Clark then requested that I recuse myself from the proceeding on the basis of a reasonable apprehension of bias. Counsel for the Commission and the spouse of the Complainant indicated that they were not joining in that request and were content with my continued participation.
15I indicated that I was not at that point prepared to accede to the request that I recuse myself and that counsel for Kimberly-Clark should make a formal motion to that effect. In anticipation of that formal motion, dates were then set for an exchange of briefs and the hearing of the motion.
16Subsequently, on January 26, 2005, counsel for Kimberly-Clark again wrote to the Registrar with a list of eighteen questions for me to answer (Appendix A). I did not respond to that letter at the time, but, at the commencement of the hearing of the motion on February 18, 2005, I provided answers orally to eight of those questions and declined to answer the remaining ten, again on the basis that the solicitors for the plaintiffs in the class action suit had instructed me that the information requested in those questions was the subject of solicitor/client privilege. Following the hearing of the motion, responding to a request by counsel for Kimberly-Clark, I confirmed my answers in a letter sent under the hand of the Registrar to the parties (Appendix B).
17At the hearing of the motion and in the subsequent letter, in answer to the questions posed by counsel for Kimberly-Clark, I revealed that I was not a practicing lawyer, that I had not been called to the Bar of Ontario, that I was not a member of the plaintiff's legal team in the class action suit, that I was not providing legal advice to the plaintiffs, that I had been retained not by the plaintiffs directly but by their solicitors, and that I was providing consulting services to those solicitors and not the plaintiffs directly. I also stated that I was not a member of the class who were the plaintiffs in the class action suit and that I had been acting as a consultant in this matter since June 2003. I did not answer questions about why and how I came to be a consultant to the plaintiffs' solicitors, my contractual arrangements (if any) with the plaintiffs' solicitors, the precise nature of my work for those solicitors, or the current state of the class action suit.
18Mandeville et al. v. Manulife is a case in which a group of Bajan life insurance policyholders with Manulife is suing Manulife for breach of fiduciary duty and negligence. The claim arises out of what the plaintiffs allege was an improper exclusion of the Bajan policyholders from the benefits that flowed to other policyholders with Manulife on the demutualization of that company. The claim is for $150,000,000.
GROUNDS OF MOTION FOR RECUSAL
19In its motion for recusal, which was opposed by the Commission and the Complainant (through her spouse), Kimberly-Clark has asserted:
(1) That my voluntary disclosure that I was acting as a consultant to the plaintiffs in the class action suit against Manulife established a reasonable apprehension of bias;
(2) That my acting as a consultant to the plaintiffs in that class action suit established a reasonable apprehension of bias;
(3) That my refusal to disclose detailed information about the nature of the consulting services that I am providing in that class action suit established a reasonable apprehension of bias; and
(4) That my acting as a consultant in that class action suit has already prejudiced Kimberly-Clark.
DECISION
20The motion that I recuse myself is granted. I do so on the basis that, given the information available to it and my inability to provide further details of my consulting arrangement with the solicitors for the plaintiffs in the class action suit against Manulife, Kimberly-Clark has established a reasonable apprehension of bias. The motion for the appointment of an adjudicator who is not involved, directly or indirectly, in the class action suit against Manulife is dismissed as beyond my jurisdiction.
ANALYSIS
21There is no merit in the argument that the mere fact that I revealed my involvement in the class action suit against Manulife establishes a reasonable apprehension of bias. On occasion, a decision-maker will provide information of this kind knowing full well that it does give rise to a reasonable apprehension of bias in order to ascertain whether the parties are prepared to waive that impediment and consent to the participation of the adjudicator. However, that is not the only basis on which adjudicators will feel obliged to provide such information to the parties. It is normally considered incumbent on adjudicators to draw to the attention of the parties any relevant information that might possibly give rise to a concern. That then provides the parties (or any one of them) with the opportunity to both express any such concern and make submissions to the adjudicator as to why that concern amounts in law to a reasonable apprehension of bias. It is then for the adjudicator to decide on the basis of the submissions whether, in her or his judgment, a reasonable apprehension of bias has been established. That was the situation that I foresaw in this instance when I apprised the parties of my involvement in the class action suit. I was not acknowledging the existence of a reasonable apprehension of bias but providing an opportunity for that to be put in issue and dealt with on the basis of submissions.
22The issue then becomes whether the way in which counsel for Kimberly-Clark has characterized his client's concerns with my role as an adjudicator in this case is appropriate and does give rise to a reasonable apprehension of bias. It is unlikely that a reasonable apprehension of bias would arise all that often from a situation in which a party in human rights proceedings had a contractual relationship with a corporation which was a party in other unrelated proceedings in which the adjudicator was also involved either as a party, or as a lawyer or consultant.
23However, in this instance, the facts go beyond that. While not at present a party to this complaint, Manulife was a significant part of the factual matrix that has given rise to the allegations of discrimination. Manulife assessed the complainant's state of health under the Early Intervention Services Agreement, assessments that were possibly critical in denying the Complainant's request to work a shorter workweek. Subsequently, assuming these events remain part of the complaint, Manulife also assessed the Complainant's eligibility for long-term disability benefits, benefits that it denied. Moreover, as noted already, the Commission in its pleadings raises the possibility of blameworthy actions or omissions on the part of Manulife for which Kimberly-Clark is said to be responsible.
24In the circumstances, it is not at all surprising that Kimberly-Clark has foreshadowed motions that have as at least one of their objectives the clarification of the role that the activities of Manulife will play in the adjudication of this complaint. Indeed, the way in which the Commission pleaded alerted me immediately to the question whether I might have to exercise the Tribunal's powers under sections 39(2)(d) and (3) of the Code and add Manulife as a party to the proceedings.
25In these circumstances, should I continue to sit as the Tribunal in this matter, given that, in another context, I am acting as a consultant on behalf of the plaintiffs in a class action suit which is alleging breach of fiduciary duty and negligence against Manulife and where the damages claimed is the very large sum of $150,000,000 (and which includes a claim for punitive damages)? In short, counsel for Kimberly-Clark asserted that my involvement in the furtherance of this litigation against Manulife gives rise to a reasonable apprehension on the part of his client that I will be biased in my appraisal of the actions of Manulife in so far as they might affect the liability of Kimberly-Clark in this proceeding. He also suggested that my involvement in the class action suit raises a reasonable apprehension in the mind of his client that I might be less than objective in my assessment of the foreshadowed preliminary motions seeking to remove all references to Manulife and events after March 1, 2001 from the ambit of this complaint.
26Counsel claimed that, irrespective of the precise nature of my role in the class action suit, my involvement in a capacity adverse in interest to that of Manulife is sufficient to raise a reasonable apprehension of bias. However, he also argued that the problem has been compounded in this case by my inability to reveal further details of my consultancy (including my entitlement, if any, to compensation for the work in which I have been involved). Without those details, he submitted that the apprehensions of a reasonable person about my lack of objectivity are almost inevitably increased. Both the extent of my involvement and the nature of my compensation arrangements with the solicitors for the plaintiffs in the class action suit will, it is claimed, affect a reasonable person's assessment of my likely bias.
27In opposing the recusal motion, counsel for the Commission argued that the connection between these proceedings (and Manulife's role in them) and my engagement as a consultant in the class action suit against Manulife was simply too remote or tangential to generate a reasonable apprehension of bias. The proceedings were unrelated and dissimilar in their scope and the mere fact that Manulife's conduct was under attack in the class action suit and might be under scrutiny in this matter was insufficient in itself to give rise to a reasonable apprehension of bias. Counsel for the Commission also submitted that I had supplied sufficient information necessary for a reasonable person to determine whether the facts give rise to a reasonable apprehension of bias. It was not necessary to know more, and the questions that I was unable to answer involved unnecessary or irrelevant information, the lack of access to which could not in itself generate or compound a reasonable apprehension of bias.
28As for the law, though their respective briefs referred to a number of disparate authorities, counsel for Kimberly-Clark and counsel for the Commission seemed (at least in their oral submissions) to agree on three points. First, the leading authority on the general principles governing the determination of the existence of a reasonable apprehension of bias is the dissenting judgment of de Grandpré J. in Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716 (S.C.C.) ("Committee for Justice and Liberty"). Secondly, there is no case law dealing with a factual situation on all fours with this one. Thirdly, the closest factually relevant authority is the judgment of the Court of Appeal for Ontario in Benedict v. Ontario (2000), 2000 CanLII 16884 (ON CA), 51 O.R. (3d) 147 (C.A.) ("Benedict"). Thereafter, in furtherance of their respective positions on my continued participation, the two counsel took diametrically opposed positions on how de Grandpré J.'s statement of principle and the Court of Appeal's judgment in Benedict related to the facts of this case.
29In Committee for Justice and Liberty, at 735, de Grandpré J. set out the now standard test:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly.
He did, however, go on to state, at 735-36, that the grounds for any such apprehension must be "substantial", and, quoting from the Federal Court of Appeal's judgment in that case, not the product of a "very sensitive and scrupulous conscience".
30In other cases, particularly those in which Superior Court and provincially-appointed judges have been asked to recuse themselves on the basis of a reasonable apprehension of bias, the sentiment that there must be substantial grounds for disqualification is reflected in propositions such as that a judge "should not easily accept a motion to recuse": Samson Indian Band & Nation v. Canada (1997), 1997 CanLII 6390 (FC), [1998] 3 F.C. 3 (T.D.) at para. 23, affirmed (1998), 227 N.R. 386 (C.A.). If motions for recusal are allowed too readily on insubstantial grounds, parties to proceedings will be provided with a potentially powerful instrument for engaging in adjudicator shopping and delaying proceedings, and, more generally, the law's grip on practical realities will be loosened. Indeed, as the following extract from the judgment of Cory J. in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at 532, reveals, there are other reasons of policy for insisting that such challenges not be made or allowed lightly:
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of a real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed, an allegation of reasonable apprehension of bias calls into question not only the personal integrity of the judge, but the integrity of the entire administration of justice... Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegation. Yet, it is a serious step that should not be undertaken lightly.
While these sentiments have to be qualified in situations where the adjudicator has actually disclosed facts in order to provide the parties with the opportunity to make a challenge should those facts raise serious concerns, Cory J.'s reasons for insisting on a high threshold remain valid.
31In Benedict, the Court of Appeal for Ontario encountered a situation in which a judge of the Ontario Superior Court had denied a motion that she recuse herself from presiding over a motion by the Crown for a stay of proceedings on an application. That application was brought against the Crown in right of Ontario for a declaration of entitlement to severance or pay in lieu of reasonable notice stemming from the applicant's dismissal from the Ontario civil service. The applicant was also seeking declarations of entitlement under Ontario legislation governing employment and benefits in the Ontario civil service. The principal ground for the application to stay the proceedings was that the applicant had a right of access on the claims that he was making to the Public Service Grievance Board and the Court should defer to the jurisdiction of that Board.
32When she heard the application for a stay, the Superior Court justice was a plaintiff in an action against the Crown in right of Ontario in which she was claiming damages for wrongful dismissal and the value of lost benefits arising out of her previous employment as a lawyer with the Ontario Human Rights Commission.
33The judge denied the Crown's application for a stay by way of endorsement. Thereafter, the Crown brought a motion before the judge that she withdraw the endorsement on the basis that she should not have heard the application because the facts gave rise to a reasonable apprehension of bias. The judge dismissed that motion and the Crown appealed to the Court of Appeal from the denial of both of its motions. The Court of Appeal allowed the appeal from the denial of the motion to withdraw the endorsement.
34Critical in the Court of Appeal's allowing of the appeal was its characterization (at p.159) of the factual context from which the apprehension of bias was alleged to arise:
Both the motions judge and Mr. Benedict had asserted claims against the Crown which can be described generically as wrongful dismissal claims. Thus, in the context of a wrongful dismissal claim, the motions judge was hearing a motion brought by a party against whom she was actively asserting the same claim. Any decision she reached unfavourable to the Crown could have been perceived as advancing or vindicating her own claim. Applying the broad approach to self-interest discussed in [R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet, [1999] 1 All E.R. 577 (H.L.)], the motions judge had an interest in the outcome of the motion.
35In ruling that this gave rise to a reasonable apprehension of bias, the Court indicated that it was accepting the second of three characterizations of the situation advanced by the Crown (at p. 157): that
...the motions judge was the plaintiff in an ongoing action against the Crown the subject of which was an employment-related claim as in Mr. Benedict's case.
In so holding, the Court noted (at p.159):
We are not deciding that a judge who is a party to litigation against the Crown is per se disqualified from presiding in a case in which the Crown is a party. This is to be determined by whether or not the judge has an interest in the case. Nor are we deciding that before a judge must disqualify himself or herself from hearing a case in which a party is also a party in a case brought by the judge, that there must be an identity of a discrete issue, or issues, in each case. What we do decide, in what undoubtedly will be the rare case, is that the judge should not hear any case in which a party and the judge are engaged in ongoing litigation over a claim that is similar to the claim in the case before the judge for adjudication.
36My interpretation of this extract as it applies to the facts of this case (though counsel for Kimberly-Clark did not agree) is that any involvement of an adjudicator on behalf of a plaintiff in other proceedings taken against Manulife does not lead necessarily to recusal from hearing any other matter in which the actions of Manulife may be called into question. Especially in the instance of a major corporation with many different divisions and carrying on many different kinds of insurance and financial business, the mere presence of any form of adversarial relationship with that corporation should not lead to automatic disqualification from hearing a matter in which that corporation is implicated. As the Court of Appeal held, the real question is whether the presiding adjudicator has by reason of that other adversarial relationship an "interest" in the case to which he or she has been assigned. What is, however, clear from both the terms of the Court of Appeal's judgment and the factual situation to which it was applied is that the "interest" in question does not depend on there being an identity between the issues at stake in each of the proceedings but mere similarity in the sense of both proceedings involving the same generic area of law or allegations of wrongdoing. In Benedict, the commonality was wrongful dismissal albeit in very different contexts and involving very different emanations of the Crown in right of Ontario.
37There are a number of differences between the situation of the judge in Benedict and my situation in the present case, differences that counsel for the Commission emphasized in opposing the motion. I am not a party to the class action suit against Manulife; I am a non-witness consultant. Manulife is not a party (at least at present) in these proceedings. There is a considerable difference between a class action suit in which a company is being sued on the basis of alleged wrongdoing in relation to the rights of life insurance policyholders and any possible involvement with a violation of the Code on the part of Manulife in these proceedings either under the Early Intervention Services Agreement or as Kimberly-Clark's long-term disability policy carrier.
38However, as counsel for Kimberly-Clark submitted, these differences do not necessarily mean that I do not have an "interest" in these proceedings within the spirit and intent of the Court of Appeal's judgment in Benedict. First, it seems obvious that the disqualification of an adjudicator by reason of being a party in other proceedings would also extend to situations where that adjudicator is a lawyer for or representative of a party in those other proceedings. Secondly, the fact that Manulife is not a respondent in these proceedings (at least at present) should not distract from the fact that the case as pleaded by the Commission at least at one point seeks to make Kimberly-Clark vicariously liable for the alleged wrongdoing by Manulife. Thirdly, in a generic sense, the conduct of Manulife that is in question in each proceeding involves issues of insufficient regard for the rights of the beneficiaries of insurance schemes.
39This suggests that there may be much greater similarity between the situation here and that in Benedict than might be thought as a matter of initial impression. It is also my judgment that the case for recusal is clinched when two further considerations are taken into account.
40In its judgment in Benedict, the Court of Appeal, at p.160, ends the body of its discussion with the following admonition:
In circumstances like this case, it is only the judge who knows the particulars that could give rise to an apparent bias should the judge hear the case. Where a judge perceives a potential self-interest, especially where the circumstances may not be known to the litigants, he or she should withdraw from the case or should raise the potential problem and make full disclosure of all the relevant facts prior to, or at the outset of the proceedings. Where any party takes the position that a reasonable apprehension of bias exists, the judge must carefully weigh that submission and when in doubt should disqualify himself or herself [emphasis added].
In a case such as this, where there are doubts as to the side of the Benedict line on which the situation falls, it is my judgment that the scope of the adjudicator's obligation to disclose and the compass of what constitute relevant facts increases.
41Without necessarily accepting the relevance of all ten of the questions that counsel posed and that I was not able to answer because of considerations of solicitor/client privilege, I accept that the parties were entitled to more disclosure of the nature of my engagement in the class action suit against Manulife. Without that fuller disclosure in a situation already at least close to the line, Kimberly-Clark is justified in asserting that they do not have enough information on which to assess whether there is a reasonable apprehension of bias arising out of my engagement as a consultant by the plaintiffs' solicitors in the class action suit.
42In making this ruling, I have also been mindful of the fact that there may come a point (and perhaps very soon) at which the status of Manulife will have to be clarified. In that context, any situation in which Manulife was served with notice of these proceedings with a view to determining whether it should be added as a party or even put on notice, would introduce Manulife itself into the proceedings directly. Once again, were I to continue to serve, I would have to disclose my involvement in the class action suit to Manulife, and it is quite likely that counsel for Manulife would make a motion for recusal. In all of the circumstances, it would not be appropriate to expose the parties to the risk of the expense and delay of the proceedings that any such further motion would cause.
APPOINTMENT OF A SUBSTITUTE ADJUDICATOR
43In its notice of motion, as already noted, Kimberly-Clark is seeking an order for the appointment of an adjudicator "who is not participating, directly or indirectly, in litigation or proceedings against Manulife Financial...or Kimberly-Clark".
44I have no jurisdiction to make such an order. Assignments to adjudicate complaints referred to the Tribunal by the Commission under the Code are the responsibility of the Chair (and, currently, the Acting Chair). This decision will be communicated to the Acting Chair and she will fulfill her statutory mandate and appoint someone else to hear this complaint.
45I should also note that, to the extent the Acting Chair's actions in appointing a substitute adjudicator are premised on the terms of this ruling, I have at no point ruled that a reasonable apprehension of bias would exist in all cases in which an adjudicator was "participating, directly or indirectly, in litigation or proceedings against Manulife Financial... or Kimberly-Clark". As the jurisprudence makes abundantly clear, the particular context is critical.
ORDER
46In accordance with these reasons, I make the following orders:
(1) The motion for recusal is granted.
(2) The motion for the appointment of another adjudicator is denied for want of jurisdiction.
Dated at Toronto, this 15th day of March, 2005
"David J. Mullan"
David J. Mullan Member
APPENDIX A
Is Mr. Mullan is a practicing lawyer, and if so, in what organization does he practice?
Has Mr. Mullan been called to the Ontario Bar, and if so, in what year?
Is Mr. Mullan a member of the plaintiff's legal team in the Class Action against Manulife?
Is Mr. Mullan giving legal advice to the plaintiffs in the Class Action against Manulife, or the plaintiff's solicitors?
Was Mr. Mullan retained as a consultant by the plaintiffs in the Class Action against Manulife, or by the plaintiff's solicitors?
Does Mr. Mullan provide consulting services to the plaintiffs in the Class Action against Manulife, or to their solicitors?
Why was Mr. Mullan selected as a consultant in the Class Action against Manulife?
How was Mr. Mullan selected as a consultant in the Class Action against Manulife?
Since what date has Mr. Mullan provided consulting services in the Class Action against Manulife?
Did Mr. Mullan consult in respect of the preparation of the Statement of Claim or the Amended Fresh Statement of Claim in the Class Action against Manulife?
Is Mr. Mullan a member of the Class as defined in the Class Action against Manulife?
Does Mr. Mullan have any financial or proprietary interest in the outcome of the Class Action against Manulife? If so, please describe.
How has Mr. Mullan be compensated for the consulting services he has provided in the Class Action against Manulife?
How will Mr. Mullan be compensated in the future for the consulting services he will provide in the Class Action against Manulife?
Will the plaintiffs in the Class Action against Manulife and/or their solicitors compensate Mr. Mullan for his consulting services?
Is Mr. Mullan providing consulting services in the Class Action against Manulife on a contingency basis? If so, please describe.
How much has Mr. Mullan been compensated, and how much will Mr. Mullan be compensated, for his consulting services?
What is the current status of the Class Action against Manulife?
APPENDIX B
David Mullan is not a practicing lawyer in any jurisdiction.
He has never been called to the Ontario Bar.
He is not a member of the plaintiffs' legal team against Manulife, save in so far as all consultants working for the plaintiffs' solicitors in this case might be loosely be said to be part of the "legal team".
He is not providing legal advice to the plaintiffs.
He was retained as a consultant by the plaintiffs' solicitors, not the plaintiffs directly.
He is providing consulting services to the plaintiffs' solicitors, not the plaintiffs directly.
Unable to answer by reason of solicitor/client privilege.
Unable to answer by reason of solicitor/client privilege.
June 2003. (At the hearing, Mr. Mullan said the Fall of 2003. This was in error.)
Unable to answer by reason of solicitor/client privilege.
David Mullan is not a member of the Class as defined in the Class Action against Manulife.
12-18. Unable to answer by reason of solicitor/client privilege.
