Butty v. Butty

98 O.R. (3d) 713

Court of Appeal for Ontario,

LaForme J.A. (In Chambers)

September 9, 2009

Civil procedure -- Parties -- Intervenors -- Appeal -- Trial judge highly critical of appellant's lawyer in his reasons for judgment but not awarding costs against him personally -- Lawyer asserting that trial judge misapprehended evidence and that his reputation was negatively affected by criticism -- Lawyer granted leave to intervene as added party in appellant's appeal in order to address issue of his alleged misconduct.

J acted for the appellant at trial. In his written judgment, the trial judge was highly critical of J and found that he deliberately suppressed information and disclosure. Costs were not awarded against J personally. J moved for leave to intervene as an added party in the appellant's appeal, asserting that the trial judge had misapprehended the evidence and that his reputation had suffered as a result of the trial judge's criticism.

Held, the motion should be granted.

Rule 13.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 should be interpreted liberally. The protection of the proposed intervenor's integrity can be sufficient to engage the provision, especially where, as here, there is no evidence that those interests would be advanced by the parties. There were probably no other remedies available to J to address his serious concern other than intervening in the appeal.

MOTION for leave to intervene as an added party in the appeal.

Cases referred to Beardon v. Lee, [2005] O.J. No. 1834, [2005] O.T.C. 361, 139 A.C.W.S. (3d) 47 (S.C.J.), consd Other cases referred to Authorson (Litigation Guardian of) v. Canada (Attorney General), 2001 CanLII 4382 (ON CA), [2001] O.J. No. 2768, 147 O.A.C. 355, 9 C.P.C. (5th) 218, 106 A.C.W.S. (3d) 622 (C.A.); Bloorview Childrens Hospital Foundation v. Bloorview MacMillan Centre, [2001] O.J. No. 1700, 105 A.C.W.S. (3d) 23 (S.C.J.); Butty v. Butty, 2008 CanLII 23946 (ON SC), [2008] O.J. No. 2017, 168 A.C.W.S. (3d) 340, 2008 CarswellOnt 2918 (S.C.J.), supp. reasons [2009] O.J. No. 1887, 70 R.F.L. (6th) 181, 2009 CarswellOnt 2528, 2009 CanLII 23111 (S.C.J.); Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716, [1985] S.C.J. No. 81, 23 D.L.R. (4th) 1, 64 N.R. 46, J.E. 86-64, 17 Admin. L.R. 230, 34 A.C.W.S. (2d) 111; Peixeiro v. Haberman (1994), 1994 CanLII 7322 (ON SC), 20 O.R. (3d) 666, [1994] O.J. No. 2459, 25 C.C.L.I. (2d) 6, 33 C.P.C. (3d) 388, 51 A.C.W.S. (3d) 33 (Gen. Div.); United Pacific Capital Ltd. v. Piché, [2005] B.C.J. No. 1522, 2005 BCSC 1018, 48 B.C.L.R. (4th) 136, 140 A.C.W.S. (3d) 456 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 13.01, (1), (2)

Melinda Graham, for respondent. No one appearing for appellant. Philip Epstein and Aaron Franks, for intervenor Stanley Jaskot. [page714]

Endorsement of LAFORME J.A. (In Chambers):

Background

[1] The moving party, Stanley Jaskot, represented the appellant, Julius Butty, at trial before Pazaratz J. in April 2008. In his lengthy written decision -- Butty v. Butty, 2008 CanLII 23946 (ON SC), [2008] O.J. No. 2017, 2008 CarswellOnt 2918 (S.C.J.) -- the trial judge was extensively and highly critical of Mr. Jaskot. He believed that Mr. Jaskot purposefully suppressed information and disclosure in an explicit attempt to mislead opposing counsel and the court. Mr. Jaskot asserts that the trial judge significantly misapprehended the evidence in this regard.

[2] As a result of the judgment, Mr. Jaskot claims that he has suffered both personally and professionally. In his affidavit, he swears that the judgment has been widely circulated; that dozens of people have asked him about it; and that it is a source of personal embarrassment for him. He also says that the decision has adversely impacted on his practice, and that he knows of at least one client that terminated his retainer as a result of the decision.

[3] One additional point worth noting is that the respondent did not seek costs personally against Mr. Jaskot and no costs were awarded against him in the costs decision; Butty v. Butty, [2009] O.J. No. 1887, 2009 CanLII 23111 (S.C.J.).

[4] By this motion, Mr. Jaskot asks for leave to intervene in the within appeal as an added party and to make brief oral and written submissions restricted to addressing his impugned conduct. If granted, he will rely only on his motion record material; he will seek no costs; and he will limit his oral argument to 15 minutes.

[5] The respondent opposes the motion; the appellant takes no position.

Analysis

[6] The test for adding a party for intervenor status is at rule 13.01(1) and (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims, (a) an interest in the subject matter of the proceeding; (b) that the person may be adversely affected by a judgment in the proceeding; or [page715] (c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

[7] As the responding party notes, leave to intervene in a private lawsuit is rarely granted: Peixeiro v. Haberman (1994), 1994 CanLII 7322 (ON SC), 20 O.R. (3d) 666, [1994] O.J. No. 2459 (Gen. Div.), cited with approval in Authorson (Litigation Guardian of) v. Canada (Attorney General), 2001 CanLII 4382 (ON CA), [2001] O.J. No. 2768, 147 O.A.C. 355 (C.A.), at para. 8. Leave will nonetheless be granted when the requirements of rule 13.01 are met. In my view, those requirements have been met in this case.

Rule 13.01(1)

[8] Pepall J. in Beardon v. Lee, [2005] O.J. No. 1834, [2005] O.T.C. 361 (S.C.J.) was correct in taking a liberal approach to the interpretation of rule 13.01(1)(a). I especially agree with her conclusion that the protection of "the proposed intervenor's integrity" can be sufficient to engage the provision, especially where there is no evidence that these interests would be advanced by the parties. That is precisely this case.

[9] I accept that Mr. Jaskot has reputational interests at stake -- perhaps even significant -- which can impact his financial and psychological well-being. His interests are unlikely to be adequately represented by the parties on appeal. Indeed, the appellant may decide that it would be advantageous for his appeal to argue that the trial judge was correct in finding solicitor misconduct. Furthermore, the trial judge's findings regarding Mr. Jaskot's conduct were, as the trial judge noted, not necessary to the resolution of the action.

[10] Finally, there are likely no other remedies available to Mr. Jaskot to address this serious concern other than by intervening in the appeal. Judges are not civilly liable for any act done in the course of or in connection with their legal duties, even if done maliciously or in bad faith: Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716, [1985] S.C.J. No. 81. An application to amend the decision is unlikely to succeed: see, for example, United Pacific Capital Ltd. v. Piché, 2005 BCSC 1018, [2005] B.C.J. No. 1522, 48 B.C.L.R. (4th) 136 (S.C.). And, while it may be possible for him to ask the Law Society of Upper Canada to rule that he did not misconduct himself or perhaps he could register a complaint to the Canadian Judicial Council, the practicality of these as a remedy is uncertain. [page716]

[11] In sum, I conclude that Mr. Jaskot has met the requirements of rule 13.01(1)(a). As Croll J. observed [at para. 17] in Bloorview Children Hospital Foundation v. Bloorview MacMillan Centre, [2001] O.J. No. 1700, 105 A.C.W.S. (3d) 23 (S.C.J.), "[t]he Rules do not require that a party seeking leave to intervene must have a direct interest in the very issue to be determined". Mr. Jaskot, in my view and in the circumstances of this case, has an interest in the subject matter of the appeal.

Rule 13.01(2)

[12] Regarding rule 13.01(2), I will hold Mr. Jaskot to the agreement he offered on this motion. He will be limited to the trial record and to the issue of his conduct. He must rely only on his motion record material and a factum that is not to exceed five pages, and he will limit his oral argument to 15 minutes. In this regard, Mr. Jaskot is unlikely to "unduly delay or prejudice the determination of the rights of the parties to the proceeding".

Disposition

[13] The motion is allowed and Mr. Jaskot is granted leave to intervene in the within appeal as an added party in accordance with this decision. I am unable to understand the forcefulness of the respondent's objections to this motion and remain at a loss to understand why it was necessary. In all the circumstances, the respondent shall pay Mr. Jaskot's costs of this motion fixed in the all-inclusive amount of $3,000.

Motion granted.