Court of Appeal for Ontario

Citation: 8150184 Canada Corporation v. Rotisseries Mom's Express (Les Rotisseries Mom's Express Limitée), 2016 ONCA 115

Date: 2016-02-10

Docket: C60804

Before: Feldman, MacPherson and Miller JJ.A.

Between:

8150184 Canada Corporation

Plaintiff (Respondent)

and

The Rotisseries Mom’s Express Limited also known as Les Rotisseries Mom’s Express Limitée, Ashraf Ahmad and Pierre McLean

Defendants (Appellant)

Counsel:

Ashraf Ahmad, acting in person

David Fogel, for the respondent

Heard: January 25, 2016

On appeal from the judgment of Justice Graham Mew of the Superior Court of Justice, dated February 6, 2014.

Reasons for Decision

MacPherson J.A.:

[1] The appellant, Ashraf Ahmad, appeals the judgment of Mew J. of the Superior Court of Justice dated February 6, 2014, awarding the respondent 8150184 Canada Corporation partial judgment of $152,314.44.

[2] The appellant was the Ontario manager of a Quebec food franchise business, The Rotisseries Mom’s Express Limited. The respondent was a franchisee that entered into a franchise agreement with the franchisor. This contract was governed by the Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3 (“AWA”).

[3] The franchisee brought an action against the corporate franchisor and two personal “franchisor’s associates”, the appellant and Pierre McLean.

[4] The defendants hired an Ottawa lawyer, Denis Cadieux, to represent them. The instructions he received were that his clients wanted to comply with the AWA and would pay any amounts properly owing to the franchisee. Acting on these instructions, Mr. Cadieux sent a letter to the plaintiff’s counsel, saying in part:

We act for the franchisor and the franchisor’s associates in this matter and have in hand your letter of October 25, 2012. While our clients deny that they have failed to abide by the disclosure provisions of the Act, they agree that your client can rescind the agreement entered into between the parties. They also will comply with the Act with regards to refunding the franchise fee, the remaining inventory (if any) purchased pursuant to the franchise agreement, and any supplies and equipment purchased pursuant to the franchise agreement at the statutorily dictated price.

[5] Unfortunately, the parties were unable to settle their dispute. They could not agree on the amount the defendants would pay the plaintiff. A trial was set for February 3, 2014.

[6] On December 31, 2013, the plaintiff served a Notice to Admit on the defendants’ counsel. The defendants did not respond to the Notice to Admit. By virtue of rule 51.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the defendants were deemed to admit the truth of the facts and the authenticity of the documents in the request to admit 20 days after the Notice to Admit was served, on January 20, 2014.

[7] The defendants’ instructions to their counsel, Mr. Cadieux, were that they intended to settle with the plaintiff and that they did not want Mr. Cadieux to run up legal fees preparing for a trial that would not take place.

[8] In late January 2014, Mr. Cadieux became concerned as the trial date approached. He had trouble contacting the appellant and Mr. McLean, who lived in Quebec City. On January 24, Mr. Cadieux sent an email to the appellant and Mr. McLean: “Gentlemen, you are not returning my phone calls or giving me instructions.” On January 28, Mr. Cadieux informed his clients that he could no longer represent them “since you are now apparently in conflict.”

[9] On February 2, 2014, Mr. Cadieux sent another email to his clients:

Gentlemen,

This is simply a reminder that you both have to be in court tomorrow morning. Ash, your new potential lawyer will be there on standby to tell the judge that if they grant you an adjournment he is willing to take you on. Pierre, the lawyer from Quebec City called but he will not attend, and would not even give me a letter to confirm that we spoke. I can, however, tell the judge that you have consulted other counsel. As indicated previously, this is at 10h00 tomorrow, at 393 University Avenue, ct no 704.

You have received my material on Friday. I will explain to the Judge that as of last week there is a serious disagreement between both of you and in the circumstances I can not act for anyone.

The judge may or may not agree to the adjournment. If he does not grant the adjournment he will hear the trial, which may be very short since your instructions had always been that you would find the funds to settle all actions. You always instructed me to buy you some time, but not to spend your resources to fight the trial. We will only know tomorrow morning what will be happening, after the Judge makes his initial decision. That means you both have to be there, and you may be called upon to testify depending on how things go.

[10] On February 3, Mr. Cadieux appeared in court in Toronto and made a motion to get off the record. He also sought an adjournment of the trial so that the defendants could instruct two new counsel. Usman Hannan was present in court and prepared to go on the record for the appellant. However, he was not able to represent him if the trial proceeded that day. The appellant and Mr. McLean did not attend court.

[11] Counsel for the plaintiff, Keith Landy and David Fogel, opposed the adjournment request and moved for judgment on the basis of the unanswered Notice to Admit.

[12] The trial judge heard extensive submissions on whether the trial should be adjourned and about the order in which the two motions should proceed.

[13] The trial judge declared that an adjournment should not be granted:

The trial date in this matter has been set for many months, the defendants were aware of it. They were advised to attend in person today when last week they were told by Mr. Cadieux that he and his firm would be seeking to get off the record.

[14] Having decided against an adjournment, the trial judge then ordered that the plaintiff’s motion based on the Notice to Admit should proceed first. He considered Mr. Cadieux’s awkward position, the defendants’ non-attendance in spite of a strong warning from their counsel, and prejudice to the plaintiff. The trial judge observed: “I have been wrestling with this one.” He concluded:

Taking into account all of that, it seems to me that fairness dictates, or at least that the fairest outcome would be that I hear the motion based on the request to admit. I will, as I have indicated, grant the motion by the defendants’ lawyers to get off the record, that order will take effect as soon as the motion on the request to admit has been heard. If the motion does not dispose of all issues, I will adjourn the trial so that the defendants have the opportunity to appoint new lawyers and I will adjourn it to an appropriate Monday to be spoken to in court, so that whoever the new lawyers are can discuss the appropriate trial date with the court.

[15] The motion based on the Notice to Admit then proceeded. Mr. Cadieux stayed in the courtroom and represented the defendants.

[16] The trial judge rendered partial judgment for $152,314.44 in favour of the plaintiff. This award represented “amounts which have been quantified in the request to admit and which are corroborated by appropriate documentation” (emphasis in original), less amounts already paid by the defendants.

[17] However, the trial judge did not grant judgment on several other items that had been included in the Notice to Admit, including salaries for the plaintiffs’ principals, meal and car expenses, lost profits, and certain categories of damages. He ordered that these claims proceed to trial. He adjourned the trial and directed that it be spoken to on March 17, 2014.

[18] The appellant appeals on two grounds.

[19] First, the appellant contends that the trial judge erred by not permitting his counsel to get off the record at the commencement of the trial and by not granting the appellant’s request for an adjournment to enable him to retain and instruct new counsel.

[20] I do not accept this submission. The decision to adjourn a hearing is a discretionary one: see Khimji v. Dhanani (2004), 2004 12037 (ON CA), 69 O.R. (3d) 790 (C.A.). It is, therefore, entitled to deference.

[21] I can see no reason for interfering with the trial judge’s exercise of discretion in this case. The trial date was well-known to the appellant. The day before the hearing, his counsel advised him to attend in person. He also described the various scenarios, including “[t]he trial judge may or may not agree to the adjournment.” Thus, the appellant chose not to attend his own trial with his eyes wide open.

[22] In addition, the appellant’s counsel remained in court and represented his client on the plaintiff’s motion grounded in the Notice to Admit. The trial judge said this about Mr. Cadieux’s representation:

[I]n the face of my decision to hear the motion on the request to admit, despite his desire to be removed from the record, counsel (Mr. Cadieux) diligently, creditably and effectively represented the defendants’ interests on the motion.

[23] Finally, the result of the first motion strikes me as a fair result. The trial judge ordered recovery for the plaintiff based on the unanswered Notice to Admit only on what he called “hard” expenses, namely, those expenses corroborated by appropriate documentation. For other expenses, where documentation was lacking, he ordered that they be assessed at trial and he adjourned the matter to permit the appellant to engage new counsel.

[24] Second, the appellant asserts that he received ineffective assistance from his counsel in the proceedings that culminated in the partial judgment against him.

[25] Ineffective assistance of counsel claims in civil cases are unusual and only available in the “rarest of cases”: D.W. v. White (2004), 2004 22543 (ON CA), 189 O.A.C. 256, at para. 55, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 486. The appellant has not met this high burden.

[26] There is a solid documentary record that speaks to this issue, including an affidavit by Mr. Cadieux and the trial judge’s comment in his reasons (set out above). Mr. Cadieux represented his clients faithfully and in accordance with their instructions. He also stayed and represented them on the first motion before he was allowed to get off the record. The problem in late January in the run-up to the trial set for February 3, 2014 was not created by Mr. Cadieux’s efforts; rather, the problem was the appellant’s unwillingness to communicate with his counsel at a crucial time coupled with an apparent late-breaking falling out between the appellant and Mr. McLean. In my view, the trial judge’s favourable comment about the quality of Mr. Cadieux’s representation of the appellant at the hearing is equally applicable to Mr. Cadieux’s pre-hearing representation of the appellant.

[27] I would dismiss the appeal. I would award costs to the respondent fixed at $4,500, inclusive of disbursements and HST.

Released: February 10, 2016 (“J.C.M.”)

“J.C. MacPherson J.A.”

“I agree. K. Feldman J.A.”

“I agree. B.W. Miller J.A.”