SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-11-442787
DATE: 20121012
RE: JOCELYNE FRIGAULT
Plaintiff
AND:
FORENSIC INVESTIGATIONS CANADA INC.
Defendant
AND
COURT FILE NO.: CV-12-443289
DATE: 20121012
RE:
ANASTASIA SUSIE BOOTH
Plaintiff
AND:
FORENSIC INVESTIGATIONS CANADA INC.
Defendant
BEFORE: Justice E.M. Morgan
COUNSEL:
J.W. Kramer, for the Plaintiffs
Allyson M. Fischer, for the Defendant
HEARD: October 12, 2012
ENDORSEMENT
[ 1 ] These are two separate actions in two separate court files, but the issues in the two motions before me are identical and so this endorsement applies to both.
[ 2 ] The Plaintiffs are both former employees of the Defendant. Each was terminated by the Defendant when ownership of the Defendant changed hands, and each sued for wrongful dismissal. Ms. Booth was terminated on November 24, 2011 and Ms. Frigault was terminated on December 22, 2011.
[ 3 ] Both actions settled at a mediation conference held on June 7, 2012. Ms. Booth was to be paid $36,000 by the Defendant and Ms. Frigault was to be paid $70,000, both all inclusive. There was no payment date specified in the Minutes of Settlement, but counsel for the Plaintiffs, Mr. Kramer, submits that the customary understanding is that in the absence of any designated payment date, payment is to be made within 30 days of the date of settlement. In the meantime, the requisite releases and consents to dismissal of the action are prepared so that the action can be dismissed upon payment of the settlement funds.
[ 4 ] The record contains a series of emails between Mr. Kramer and counsel for the Defendant, Mr. McCreary, regarding payment of the settlement amounts. On June 28, 2012, Mr. Kramer wrote to Mr. McCreary asking when he could expect to receive the funds. Mr. McCreary responded that he would put in a “follow-up inquiry” with his client. Mr. Kramer left several voice messages over the next few days, and then wrote again on July 3 rd asking the same question.
[ 5 ] Mr. Kramer heard nothing back from Mr. McCreary, and so July 6 th he took a slightly more aggressive tact and advised Mr. McCreary that if the settlement funds were not forthcoming by July 10 th , he would be bringing a motion for judgment. With that email he also enclosed the Release signed by Ms. Frigault. Mr. Kramer reiterated his intention to bring a motion in an email to Mr. McCreary on the morning of July 10 th , at which time he enclosed the Release signed by Ms. Booth.
[ 6 ] Mr. McCreary responded by email later on July 10 th , again indicating that he was again “putting in a follow-up inquiry” with his client.
[ 7 ] Mr. Kramer’s reply was to ask yet again for payment or, at the very least, to be advised of a firm date on which payment was expected. At this point, one can see in Mr. Kramer’s correspondence a certain amount of apprehension about receiving the settlement funds. As he put it in his second email on July 10 th :
If you give me a satisfactory reply by the end of the day, we can resolve this issue without further costs being incurred. But if you simply repeat the same non-answers to my inquiries about the timing of payment, or if you do not respond, you will leave my clients with no choice but to conclude that your client does not intend to honour the settlement and I will move for judgment and seek costs on a substantial indemnity scale.
[ 8 ] When he did not receive a response to this email, Mr. Kramer booked an appointment at motions scheduling court for July 13 th .
[ 9 ] Late in the day on July 12 th , Mr. McCreary emailed Mr. Kramer to advise him that part of the settlement funds would be delivered the next day. Mr. McCreary also informed Mr. Kramer that he would be unable to attend at motion scheduling court, and would like it put off several weeks. Mr. Kramer attended on the 13 th , but the matter was put over until the following week. Meanwhile, part, but not all, of the settlement funds were received by Mr. Kramer’s office late in the day on July 13 th .
[ 10 ] Mr. Kramer and one of Mr. McCreary’s colleagues, Ms. Fischer, attended at motion scheduling court on July 20 th . By that time the balance of the settlement funds had been delivered to Mr. Kramer, and the only question left was that of costs of the motion record Mr. Kramer had already prepared. The hearing on costs was set for today.
[ 11 ] Mr. Kramer’s position is that he had to go to the time and expense of bringing a motion, failing which he may never have gotten the funds that his clients were owed. He points out that the actions are wrongful dismissal actions, and that both Plaintiffs are employees who were terminated without cause and now have no jobs.
[ 12 ] Ms. Fischer, on behalf of the Defendant, states that Mr. Kramer was impatient and acted with undue haste in bringing a motion. She submits that Mr. McCreary gave proper responses under the circumstances when he assured Mr. Kramer that he would make an inquiry of his client as to when the funds would be paid. She further submits that the Minutes of Settlement do not state that “time is of the essence”, and if the Plaintiffs were so concerned to get paid promptly they should have insisted on such a clause.
[ 13 ] Finally, Ms. Fischer contends that Mr. Kramer has breached the Principles of Civility for Advocates and the Rules of Professional Conduct in bringing the motion for judgment on such an expedited basis. While she did not spend time on this argument in her oral submissions, it forms a substantial portion of her written submissions. Mr. Kramer felt compelled to respond to this argument, and stated that he was justified in defending his clients’ interests and, in any case, that the proper forum for such an allegation is the Law Society and not motions court.
[ 14 ] Ms. Fischer was wise in not pressing the misconduct argument in her oral submissions. Not only is Mr. Kramer correct that the appropriate venue for such a complaint is the Law Society and not this court, but the complaint itself is uncalled for. Indeed, in even raising the argument the Defendants might be said to “protest too much”. This submission reflects more on the weakness of the Defendant’s position than it does on anything Plaintiff’s counsel has done.
[ 15 ] Having settled the case in early June, by mid-July Mr. Kramer was understandably concerned about when, or whether, his clients would be paid. While I do not fault Mr. McCreary for simply advising Mr. Kramer that he would make an inquiry of the Defendant – I assume that he did not have instructions from his client as to when payment would be made – the Defendant does appear to have been dragging its feet in making the settlement funds available.
[ 16 ] It is no answer for the Defendant to say that the fired employees had failed to mention to their former employer that “time is of the essence”; and, in any case, time does not have to be “of the essence” in order for a party to expect to be paid within 30 days. Further, while the Defendant would be justified in waiting to receive the signed Releases before actually turning the funds over to the Plaintiffs, that does not explain why the Defendant waited until after 30 days had passed to prepare the funds and to get them to its own lawyer. The problem here was more the Defendant’s tardiness than the Plaintiffs’ impatience.
[ 17 ] Ms. Fischer has referred me to Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2012 ONSC 5473, where Tucker J. stated, at para. 16(i), that “agreement between the parties should have resolved these issues involved here…” I would apply that thought to the Defendant in the case before me. Had Mr. Kramer not scheduled a motion for judgment, it is unclear when the Plaintiffs would have been paid, despite the fact that the parties had reached an agreement. Although this was what might be called aggressive lawyering, it was aggressive in the sense of exceptionally diligent and not in any inappropriate sense.
[ 18 ] In my view, the Plaintiffs were put to legal expenses that they should not have had to bear. Based on the Bill of Costs submitted to me, I would award costs in the amount of $6,000, inclusive of disbursements and tax, to be shared equally between the two Plaintiffs.
Morgan J.
Date: 20121012