Court File and Parties
COURT FILE NO.: CV-09-391788
DATE: 20120330
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ROBERT BiLICH , Plaintiff
AND:
TORONTO POLICE SERVICES BOARD WILLAIM BLAIR, MARK PUGASH, REUBEN STROBLE, BLAKE SHREVE, SUZANNE PINTO, STEPHEN RUFFINO, IAN SAPSFORD, CANDY GRAHAM, VICTORIA BALICE, and WENDY DRUMMOND, Defendants
BEFORE: Stinson J.
COUNSEL:
Robert Bilich, in person
Kathryn E. Kirkpatrick , for the defendants
HEARD: February 3, 2012
ENDORSEMENT
[ 1 ] This ruling deals with a motion brought by the plaintiff, pursuant to a direction by Spence J. in his endorsement dated October 25, 2011. The motion seeks the following relief:
An order that the defendants have been contemptuous of a process or order of the court, in the sense that the conduct was deliberate or calculated;
An order to strike out the affidavit of Michael Smith, sworn September 8, 2010, in its entirety, and remove the law firm of Borden Ladner Gervais LLP ("BLG"), as lawyers of record for the defendants;
An order compelling the defendants to provide relevant outstanding disclosure, as ordered by Khawly J., of the Ontario Court of Justice, on September 21, 2009, together with the reasonable costs necessitated by the failure to disclose or produce relevant materials;
An order for costs of this motion against the defendants.
background and procedural history
[ 2 ] This litigation involves claims by the plaintiff against the Toronto Police Services Board, the Chief of the Toronto police force and several of its officers. Among other remedies, the plaintiff claims damages arising from his alleged wrongful arrest on a charge of criminal harassment. That arrest followed an incident involving the plaintiff and a parking enforcement officer in June 2008. Ultimately, in September 2009, the charge was withdrawn when Mr. Bilich entered into a recognizance to keep the peace and issued a letter of apology to the parking enforcement officer.
[ 3 ] The statement of claim was issued on November 23, 2009. Although more than two years have passed since that date, no substantive steps have been taken to advance the matter towards resolution or trial. In summary form, the following table sets out the history to date:
Date
Event
June 22, 2008
Mr. Bilich is charged.
Sept. 23, 2009
Mr. Bilich enters into a recognizance to keep the peace with a $500 bond, and issues a letter of apology to the parking enforcement officer. In exchange, the Crown agrees to withdraw the charges.
Nov, 23, 2009
The statement of claim is issued.
Dec. 2, 2009
Mr. Bilich first raises conflict of interest allegations regarding counsel retained by the defendants, Michael Smith of BLG.
Dec. 3, 2009
Mr. Smith requests details of the alleged conflict of interest.
Dec, 10, 2009
On behalf of the defendants Mr. Smith serves a notice of intent to defend and informs Mr. Bilich that he will be serving a demand for particulars of the statement of claim.
Dec, 14, 2009
Mr. Bilich renews his conflict of interest allegations, but provides no details.
Dec. 14, 2009
Mr. Smith again requests details of the alleged conflict of interest. Mr. Smith does not provide any.
Dec. 15, 2009
Mr. Smith serves a demand for particulars.
Dec. 18, 2009
Mr. Bilich confirms receipt of demand for particulars and requests an explanation as to why particulars are necessary.
Dec. 18, 2009
Mr. Smith replies to Mr. Bilich, raising the supposed deficiencies in the statement of claim and stating that it is vulnerable to a motion to strike it out, but to avoid that process he is seeking particulars instead.
Dec. 23, 2009
Mr. Bilich serves a reply to demand for particulars, which the defendants maintain is deficient.
Dec. 29, 2009
Mr. Smith serves a pro forma 3 paragraph statement of defence purportedly reserving his right to move for particulars of the statement of claim and then to serve an amended defence.
Jan. 14, 2010
Mr. Bilich advises of his intention to bring a motion to strike the statement of defence.
Jan. 31, 2010
BLG informs Mr. Bilich of defendants' intention to bring cross-motion for particulars. Thereafter the parties work to obtain a mutually convenient hearing date. In June 2010, a September 20, 2010 motion date is fixed.
Sept. 9, 2010
The defendants serve their notice of motion to strike the statement of claim and factum upon Mr. Bilich by email.
Sept. 20, 2010
On the return of the defendants' motion to strike, Wilton-Siegel J. grants Mr. Bilich's request to adjourn the motion due to the fact he had been out of the country and did not receive the defendants' materials until two days prior to the motion. Wilton-Siegel J. orders the defendants to serve revised materials prior to appearing in Triage Court to obtain a new date.
Dec. 20, 2010
In Triage Court Whitaker J. schedules the defendants' motion to strike to be heard on June 24, 2011. No revised materials are served by the defendants prior to the Triage Court appearance. Whitaker J. directs this to be done. They do not do so.
June 24, 2011
On the return of the defendants' motion to strike. Hoy J. grants Mr. Bilich's request to adjourn the motion in light of the defendants' failure to serve revised materials. She further directs that no further adjournments be granted and orders the defendants to deliver their revised material by July 13, 2011 and Mr. Bilich to deliver his responding factum by Sept. 23, 2011. The defendants meet the July 13, 2011 deadline, but Mr. Bilich does not meet the September 23, 2011 deadline.
Oct. 21, 2011
Mr. Bilich delivers a Respondent's Motion Record to defendants' motion to strike and includes his own motion seeking various orders. He also renews his conflict of interest allegations.
Oct. 25, 2011
On the return of the defendants' motion to strike Spence J. adjourns the matter to permit Mr. Bilich to bring the within motion.
Oct. 26, 2011 and Dec. 6, 2011
Mr. Smith again requests details of the conflict of interest allegations.
Dec 16, 2011
Mr. Bilich serves further material in which he details his allegations of conflict of interest.
Jan. 20, 2012
Mr. Smith swears his own affidavit responding to Mr. Bilich's allegations of conflict of interest.
Feb. 3, 2012
Mr. Bilich's motion is argued before me.
[ 4 ] Some elaboration on particular features of the events described above is appropriate. The statement of claim is 41 pages long and contains 183 paragraphs. Shortly after service of their notice of intent to defend, the defendants served a 16 paragraph demand for particulars. When the plaintiff responded to the demand for particulars, he largely took the position that the statement of claim contained sufficient particularity to allow the defendants to serve a defence. In order to avoid the potential for being noted in default, the defendants served a 3 paragraph statement of defence denying the plaintiffs allegations and purporting to reserve their rights to file an amended statement of defence upon receipt of particulars of the statement of claim.
[ 5 ] From that point forward, the case has been mired in a procedural bog, outlined above and described in more detail below.
[ 6 ] As far back as January 2010, the defendants were intent on bringing a motion for particulars. The September 20, 2010 date was fixed more than three months in advance. Despite the many months of lead up to the motion, defendants' counsel waited until September 9, 2010, only eleven days before the return date, to attempt to serve Mr. Bilich with the defendants' motion materials. These materials comprised of a package of approximately 10 centimeters in thickness. Instead of a mere motion for particulars, by the time it came to be served, the defendants' motion has morphed into a motion to strike out the statement of claim in its entirety.
[ 7 ] Because he was out of the country, the defendants' motion materials did not come to Mr. Bilich's attention until September 17, 2010. He therefore appeared before Wilton-Siegel J. on September 20, 2010 and asked for and was granted an adjournment. It is easy to understand why. While technically in compliance with the rules, the defendants waited until the 11 th hour to serve their motion materials. In light of the repeated delays and significant advance booking of the motion date, there is no proper reason for their having waited so long to do so. Quite apart from the volume of the materials served and the very short time allowed for the plaintiff to file a response, the focus of the defendants' motion was changed from a particulars motion to a motion to strike. It must or should have been apparent to defendants' counsel that the plaintiff would have no realistic opportunity to respond fairly and thoroughly even if he had received the defendants' materials on the day they were served.
[ 8 ] No explanation was proffered before me for the late delivery of the defendants' materials. The inevitable result was the adjournment of the motion before Wilton-Siegel J., resulting in a waste of court time and judicial resources.
[ 9 ] As a result of the events described above, Wilton-Siegel J. adjourned the defendants' motion to Triage Court. His endorsement included the following statement:
Prior to attending Triage Court, the defendants are to file and deliver revised materials in the form of a revised factum or otherwise indicating the specific nature of the deletions to the statement of claim that they seek.
[ 10 ] Mr. Bilich promptly followed up, requesting a Triage Court attendance at the earliest opportunity. Several months went by without a response from the defendants. Ultimately, the matter came before Whitaker J. on December 20, 2010. Notwithstanding repeated requests from Mr. Bilich, up to that time, the defendants had not complied with the direction of Wilton-Siegel J. to deliver revised materials. Whitaker J. fixed a new motion date of June 24, 2011 and further endorsed as follows:
Amended materials to be served and filed prior to the motion date of June 24, 2011. Plaintiff materials to be provided 30 days prior to motion date.
[ 11 ] As events unfolded, no revised materials were provided by the defendants during the succeeding six months. According to the affidavit filed by Mr. Smith, he was somehow unaware of the direction given by Wilton-Siegel J. in September 2010 that the defendants were to file revised materials. He therefore did not consider that the direction of Whitaker J. required him to do anything, so he did not.
[ 12 ] For his part, Mr. Bilich was patiently awaiting delivery the materials directed to be served pursuant to the order of Wilton-Siegel J. The net result was that when the parties appeared on June 24, 2011, no further materials had been filed by either side. As a result, Hoy J. was forced to adjourn the defendants' motion once again. The matter was put over to October 25, 2011 for a half day hearing. The defendants were ordered to serve their revised material by July 13, 2011. Mr. Bilich was ordered to provide his factum and response by September 23, 2011.
[ 13 ] The defendants met the new deadline set by Hoy J., but this time Mr. Bilich did not. He was reminded of his failure by e-mail from counsel for the defendants on October 11, 2011. He ultimately delivered an affidavit sworn on October 21, 2011, only 4 days prior to the date fixed for argument.
[ 14 ] The foregoing state of affairs was presented to Spence J. on October 25, 2011. In the face of Mr. Bilich's attack on the materials served by the defendants, and in particular his request to remove the BLG as lawyers of record for the defendants, Spence J. adjourned the matter once again.
[ 15 ] As the foregoing narrative reveals, this proceeding has been subject to significant unnecessary delay.
[ 16 ] Both parties must accept some responsibility for the lack of communication between them during the subsequent six months, leading up to the attendance before Hoy J. in June 2011.
[ 17 ] Finally, for no apparent reason, the plaintiff failed to comply with Hoy J.'s timetable.
the issues on the plaintiff's motion
[ 18 ] In the context of the foregoing procedure history, I am called upon to decide the following three issues:
Have the defendants been contemptuous of a procedure or order of the court, in the sense that their conduct was deliberate or calculated?
Should the affidavit of Michael Smith sworn September 8, 2010 be struck in its entirety and should the law firm of Borden Ladner Gervais been removed as lawyers of record for the defendants?
Is the plaintiff entitled to an order compelling the defendants to provide relevant outstanding disclosure as ordered by Khawly J. of the Ontario Court of Justice on September 1, 2009?
I will deal with each of these points in order.
1. Have the defendants been contemptuous of a procedure or order of the court, in the sense that their conduct was deliberate or calculated?
[ 19 ] I have recited in detail the unhappy history of this proceeding.
[ 20 ] The first and second "orders" directed the defendants to deliver revised materials by certain deadlines. Plainly, they failed to do so. The defendants' lawyers have admitted this failure. The explanation proffered is that it was through oversight or mistake.
[ 21 ] With respect to the remaining complaints by the plaintiff regarding the manner in which the defence to the proceeding has been conducted, apart from the last minute delivery of the motion materials in September 2010, I find nothing in this record to support the conclusion that defence counsel has engaged in a deliberate or calculated process to frustrate the procedures of the court.
[ 22 ] I therefore decline the relief sought by the plaintiff in paragraph 1 of his notice of motion.
2. Should the affidavit of Michael Smith sworn September 8, 2010 be struck in its entirety and should the law firm of Borden Ladner Gervais been removed as lawyers of record for the defendants?
[ 23 ] The plaintiff's complaint in relation to affidavit of Michael Smith sworn September 8, 2010 focuses primarily on the fact that Mr. Smith is a partner in the law firm retained to act as counsel for the defendants.
[ 24 ] In this respect, the practice is not uniform across Canada.
[ 25 ] In relation to filing an affidavit by another member of the same law firm, there is authority in the Province of Saskatchewan indicating this practice is not permissible there. In the Province of Ontario and, in particular, in the practice before the Superior Court of Justice, there is no such prohibition.
[ 26 ] The plaintiff further argues that both the September 8, 2010 affidavit and Mr. Smith's further affidavit sworn January 20, 2012, improperly contain argument and editorial comments.
[ 27 ] While I therefore agree with the plaintiff that certain aspects of Mr. Smith's affidavits do not meet the appropriate standard, there is little to be gained at this stage by "blue penciling" the offending phrases or sentences.
[ 28 ] A much more serious complaint made by the plaintiff is that the law firm acting for the defendants should be removed by reason of a conflict of interest.
[ 29 ] Mr. Bilich raised the issue of a potential conflict on the part of BLG early on in the proceeding.
[ 30 ] Within 18 hours of this conflict of interest allegation being made, Mr. Smith wrote to Mr. Bilich indicating that he had no recollection of ever speaking with him and asking that he provide him with particulars.
[ 31 ] Following that development, counsel for the defendants once again requested details of the alleged conversation.
[ 32 ] I have reviewed with care Mr. Bilich's evidence regarding the telephone consultation he claims to have had, as well as that of Mr. Smith in which he denies that such a conversation took place.
[ 33 ] Most significantly, I note that Mr. Bilich has now resiled from his assertion that he believed he consulted with Mr. Smith.
[ 34 ] For his part, Mr. Smith adamantly denies having had any conversation of the nature asserted by Mr. Bilich.
[ 35 ] The evidence of Mr. Smith on this point is logical, persuasive and has a distinct ring of truth.
[ 36 ] I therefore accept the evidence of Mr. Smith and find as a fact that he had no such discussion with Mr. Bilich.
[ 37 ] Like all judges, I am sensitive to the need to be vigilant in ensuring that conflicts of interest are avoided and the integrity of the justice system maintained.
[ 38 ] That said, the courts must also be vigilant of the entitlement of a litigant to retain a counsel of his, her or its choice.
[ 39 ] As I have indicated, in the present case I have concluded that the plaintiff has failed to establish the existence of facts that would lead a reasonable person to conclude that there is an appearance or risk of a conflict of interest.
3. Is the plaintiff entitled to an order compelling the defendants to provide relation outstanding disclosure as ordered by Khawly J. of the Ontario Court of Justice on September 1, 2009?
[ 40 ] As I understand the plaintiff's complaint here, he asserts that the defendants have failed to comply with the disclosure order made by Khawly J. during the course of the proceedings before the Ontario Court of Justice in relation to the criminal charge against him.
[ 41 ] It is by no means apparent on the face of the transcript that Khawly J. made an express order for disclosure.
[ 42 ] More fundamentally, in my respectful view, any order for disclosure made by Khawly J. during the course of the criminal proceedings ceased to have effect when the criminal proceedings came to an end.
[ 43 ] I am therefore not prepared to grant the order sought by Mr. Bilich in respect of the so-called "outstanding disclosure".
conclusion and disposition
[ 44 ] For the foregoing reasons, I dismiss the motion brought by Mr. Bilich. In view of the history of this matter and the responsibility that each side must bear for the delays and the waste of court resources, I direct each side to bear its own costs.
[ 45 ] The parties should attend in Motions Scheduling Court within the next thirty days to schedule a date for the argument of the defendants' motion that was before Spence J.
[ 46 ] Many of the problems that have developed in this case have resulted from a failure on one side or both to communicate with the opposite party their understandings, expectations and requirements.
[ 47 ] Finally, should the parties consider that it might be helpful in advancing the matter through the present procedural gridlock, I am prepared to conduct a case conference in order to address any difficulties the parties might identify.
Stinson J.
Date: March 30, 2012