COURT FILE AND PARTIES
COURT FILE NO.: 03-35/09 and CV-10-00412442-000
DATE: 20120131
SUPERIOR COURT OF JUSTICE - O NTARIO
RE: DEANN PARKER
Applicant
- and -
DOROTHY JANE FOCKLER, DEVRA PARKER, RHYS FOCKLER, DUNCAN MILLER, ARMSTRONG & QUAILE ASSOCIATES INC. – META FINANCIAL, TD CANADA TRUST, DR. MARTIN LEESEMENT, BARRY KATZ, AND THE PUBLIC GUARDIAN AND TRUSTEE (Court file 03-35/09)
Respondent
AND RE: SWADRON ASSOCIATES
Applicant
- and –
DOROTHY JANE FOCKLER (Court File CV-10-00412442-000)
Respondent
BEFORE: KRUZICK J.
COUNSEL:
Jerry Herszkopf , for the Respondent Rhys Fockler
Richard Coutinho , for the Applicant the Public Guardian and Trustee
Rebecca Studin, for the Respondent Shael Eisen
Gaetana Campisi, for the Respondent Alanna Kaye
Valerie Edwards, for the Applicant Marshall Swadron
Clare E. Burns and Mandy Seidenberg, for the Respondent Dorothy Jane Fockler
Charles Wagner (former counsel for the Applicant Deann Parker) on his own
behalf
HEARD: JANUARY 18, 2012
ENDORSEMENT
nature of the motion
[ 1 ] This matter comes before me as two motions brought by the Respondent(s) Rhys Fockler and Dorothy Jane Fockler.
[ 2 ] The questions on the motions are:
(i) should the Respondents be granted leave to move under R.57.07 to seek costs against the solicitors Swadron and Wagner; and
(ii) whether new actions commenced by Mr. Fockler should be joined with the action now set down for trial by the order of Quigley J. dated November 3, 2011.
background
[ 3 ] Mr. Fockler’s R.57.07 motion record is dated January 3, 2012. It is brought on behalf of himself, his mother, his partner, Lynn Cartwright, and Whole World Trade Ltd. In support, his counsel has filed the affidavits of Rhys Fockler and Dorothy Fockler, both sworn January 9, 2012. The affidavit of Dorothy Fockler simply confirms the particulars of Mr. Fockler’s.
[ 4 ] In July 2010 Deann Parker abandoned her claim in these proceedings. The applicant testified she commenced these proceedings out of concern for her grandmother, Dorothy Fockler. Her evidence was that she abandoned her claim as a result of the conduct of Rhys Fockler in these proceedings and the mounting costs of the action. Mr. Fockler informed counsel of his intentions to then pursue his remedies against Mr. Swardron (s.3 counsel for Ms. Dorothy Fockler) and Mr. Wagner (counsel for the applicant Deann Parker).
[ 5 ] Swadron Associates represented Dorothy Fockler on the guardianship application. The relief as sought against Swadron arises out of the fact that they were counsel of record from September 18, 2009 to September 10, 2010. Mrs. Fockler then retained new counsel, Heather Laidlaw. The appointment of Swadron was made pursuant to s.3 of the Substitute Decisions Act, 1992 , S.O. 1992, c.30 (SDA). Following the firm’s discharge Mrs. Fockler commenced a solicitor-client assessment against Swadron on October 15, 2010.
[ 6 ] The costs claim against Charles Wagner arises out of the fact that he acted for the applicant, Deann Parker. Ms. Parker abandoned her application in July 2011. The parties appeared before Justice Quigley following the abandonment.
[ 7 ] A motion for costs was brought in July 2011 by Deann Parker where she asked for Rhys Folckler to pay her costs, or alternatively that all parties bear their own costs.
[ 8 ] While Mr. Fockler indicated in July 2011 that he may seek costs against counsel personally, he did nothing formally to move the costs issues forward. Quigley J. on November 3, 2011 ordered strict timelines.
[ 9 ] The order of Quigley J. regarding the trial of the costs issues was very specific and set out a very comprehensive schedule and trial process. The matter is set for a four day trial beginning on May 22, 2012. Justice Quigley’s order is dated November 3, 2011 with extensive reasons in his endorsement of the same date. Further to that order, Quigley J. made two other endorsements dated January 10, 2012, and January 11, 2012, respectively. Justice Quigley also ordered that the R.57.07 costs motion and the consolidation motions be returnable January 18, 2012.
[ 10 ] Pursuant to Justice Quigley’s endorsements he ordered s.3 counsel Mr. Burns and Ms. Seidenberg to represent Mrs. Fockler on these motions.. From my review of all of the material filed I am satisfied that the two motions, as they implicate Mrs. Fockler’s position at trial, cannot proceed today because the issue of her representation remains outstanding.
[ 11 ] The R.57.07 motion of Mr. Fockler shall proceed.
analysis
[ 12 ] The materials for the R.57.07 and consolidation of Mr. Fockler were late and did not follow Justice Quigley’s timelines. The affidavit of Mr. Fockler addresses his delay in failing to comply with the strict time lines set by Justice Quigley. He recites that he suffered from exhaustion. That may have been the case but the explanation is less than satisfactory. I agree with the submission of counsel for Swadron and Wagner, that Mr. Fockler has at all times been represented by counsel on this motion. His lawyer, and not Mr. Fockler, is responsible for this portion of the relief as sought. The result is that responding counsel on the R.57.07 have had less than adequate time to respond to the claims against them. Nevertheless I am of the view that Mr. Fockler’s R.57.07 costs motion should proceed as scheduled.
[ 13 ] On the motion today I propose only to deal with Rhys Fockler’s R.57.07 motion. In an earlier endorsement I dealt with the issue of Ms. Fockler’s representation as previously ordered by Justice Quigley. The issue of Ms. Dorothy Fockler’s representation was frustrated and is now adjourned to February 1, 2012. Because the second motion of Mr. Rhys Fockler (for consolidation of other actions) has implications for Mrs. Fockler in the trial, I adjourned that motion to February 1, 2012.
[ 14 ] Neither lawyer against whom Mr. Fockler seeks costs personally acted for Mr. Fockler. While I agree with counsel for Mr. Fockler that R.57.07 is not limited to counsel of the party, but applies to “any party to the proceeding” (R.57.02(2)) as is the case here.
[ 15 ] In order to succeed on this motion the applicant must demonstrate that where the matter is now set down for trial leave should be granted and that there is merit for the relief requested. See: R.48.04(1) and Carlton v. Beaverton Hotel , 2010 ONSC 5611 , [2010] O.J. No. 4769 (S.C.J.). In any case, Justice Quigley clearly set out that the motions now before me, require leave.
[ 16 ] In the motion record Mr. Fockler has attached his claims against the solicitors Charles Wagner and Marshall Swadron (tabs 6 and 7), as well as cost outlines (tabs 8 and 9) on behalf of Dorothy Fockler, himself, Lyn Cartwright and Whole World Trade Ltd.
claim against swadron
[ 17 ] As against Mr. Swadron, there is a claim of professional negligence, incompetence and allegations of perjury. In support of his motion Mr. Fockler relies on his affidavit sworn on January 9, 2012. The alleged claims in the material cannot be said to be those of Mr. Fockler, but rather are those that may be made by Mrs. Dorothy Fockler, his mother. The allegations relate to the relationship and manner in which Mr. Swadron acted on Mrs. Fockler’s behalf.
[ 18 ] By way of example, Mr. Fockler set out the following:
Rule 57.07 and Professional Negligence, Incompetence and Perjury Allegations against Sawdron Associates
- Mother’s instructions were: “Get my house back”. Marshall (hereinafter ‘MAS’) was retained on CV-09-377773 but did nothing about it. Instead, he played the expensive, dead-end, 03-35/09, capacity/guardian game, rather than deal with the essence of the matter – fraud, head on.
The Truth about Section 3
- MAS was not a section 3 . Appointment. He was a private hire. He was researched by me and hired by me, as were Shael and Heather (I advised mother and she respected my advice. More importantly, it was done on time as per the September 10, 2009 Order of Justice Klowak. I made it very clear to Justice Klowak on September 10, 2009 that mother would be hiring her own lawyer of her own choice, on time.
The Rest of Marshall Swadon’s Damage Done
10.MAS has wasted an astronomical amount of everyone’s time and money, particularly since June 22, 2010.
11.MAS never raised fraud, despite mother’s constant requesting him to do so from the time he was first consulted.
12.MAS did not ask DFJ about Scotia’s involvement and didn’t even telephone her on September 22, 2009.
13.MAS ignored instructions.
14.MAS fabricated instructions.
Perjury
37.The Perjury of Alex Procope is yellow highlighted in Exhibit ‘X’.
38.The 3 main acts of perjury are: 1. The section 3. deception; 2. the June 22, 2010 conversation; 3. The false statement, “all discussions with our client respecting substantive issues in the case have occurred in their absence”.
42.Numerous steps and costs would have been avoided had the Swadron section 3.lie never occurred Mother would have just fired Marshall and that’s it.
The October 19, 2009, Pitt J. Order Respecting Information from me and from Scotia Trust/Paul Oulahen
45.This Order gave my mother 3 weeks to abandon her home in mid-November, at the age of 91, and after 40 years in her home, and to remove the entirety of her possessions and leave the home vacant, and move into an extended care facility against her stated wishes. It also provided for throwing my wife and me and our business out on the street in the same three weeks, with the entirety of our possessions and property, effectively destroying our business, and our livelihoods, and bankrupting us. Marshall Swadron, Charles Wagner and Andrew Felker crafted this one.
[ 19 ] With respect to the claim, while R.57 contemplates that a party can seek the relief it is not so broad that any person can seek costs relief against a lawyer. With respect to Mr. Swadron, Mr. Fockler was clearly not a client of Swadron. The claim he makes here is more as between a solicitor and client, not a party.
[ 20 ] While Mr. Fockler asserts that Swadron as s.3 lawyers, did not follow his mother’s instructions and perjured themselves, he does not explain how he has standing or reason to be compensated. Nor is there explanation as to how his disagreement with the lawyers’ recounting of events constitutes perjury.
claim against wagner
[ 21 ] As against Mr. Wagner, it is alleged that the position taken by Deann Parker was on the advice of her counsel Charles Wagner. Mr. Fockler’s allegations against Mr. Wagner are very personal attacks.
[ 22 ] As against Mr. Wagner, by way of example, Mr. Fockler’s allegations state the following:
Claims against Charles Wagner (Rule 57.07 and Professional Negligence and possibly Maintenance and/or Champerty):
My Comment:
The Charles Smith of the estate bar. Operates under the noses of the Court as an expert, while twisting and misrepresenting evidence and facts to permit his self-indulgence in the sport of litigation, his “rogue” hunting, which amounts to malicious prosecution of people like my wife and me. Absolutely unconcerned with all negative consequences for the victims of his sport. Feighing concern for my mother. Attempting and succeeding at the ‘estates list’ equivalent of wrongful convictions.
Mr. Fockler then goes on to add peer comments without context to this matter.
As to his cause of action against Mr. Wagner the following are but some brief examples of Mr. Fockler’s allegations:
18.CW knew or ought to have known there would be no success on the undue influence claim as there was no evidence whatsoever.
19.It was clear that Deann was always after money and only money. She was always ready to drop the attack, for enough money.
20.In my own experience, the comments made by Charles Wagner’s peers, about him and his ways, are all true and make perfect sense. They provide a behind the scenes take on what is going on with this case and other cases with which he is involved.
21.I find it obvious that CW didn’t explain any consequences of launching the litigation to Deann, let alone the possible costs, costs consequences, potential liability for same, etc, etc, related to following his advice to launch it all. And I assume Deann didn’t ask. It all seems so foolish. Note the last paragraph of Deann’s May 5, 2009 affidavit clearly says she started the litigation, “on my lawyer’s advice”.
22.CW ought to have known capacity is task specific and “ mental capacity exists if the appellant is able to carry out her decisions with the help of others ”. Koch (Re), 1997 12265 (ON S.C.) , a case where the court overturned capacity assessors’ findings of incapacity and found the appellant capable.
25.CW was presented with (as was every lawyer involved and professional involved):
a. Deann’s story that smelled bad;
b. no evidence in support of that story;
c. foreseeable harm to all members of the Parkers and Focklers if electing to proceed on the basis of the bald, smelly allegations, and not first stopping to test the bald, smelly allegations;
d. yet proceeded with a blind eye to the above, (and blindly assuming the truth of the allegations) because that served the self interest of the each party and lawyer and other professionals involved whether they became involved by invitation or involved themselves, in this matter.
[ 23 ] While the allegations Mr. Fockler makes against Mr. Wagner are serious they are, I find, highly speculative and fail to satisfy me as to their merit.
claim against both counsel and leave
[ 24 ] I agree with the position taken by both counsel that the allegations as put before me on the motion for leave are vague allegations charged with Mr. Fockler’s own emotions as to the solicitors’ professional conduct. Simply put, they are lacking in any particularity.
[ 25 ] There was no evidence to satisfy me that the solicitors’ conduct of the case was in bad faith, nor that the solicitors insisted on pursuing the litigation as alleged. See: Byers (Litigation Guardian v. Pentex Print and Master Industries Inc. (2002), 2002 49474 (ON SC) , 59 O.R. (3d) 409 (S.C.J.) aff’d 137 A.C.W.S. (3d) 1130 (C.A.) . The particulars Mr. Fockler sets out fail to convince me the relief he seeks has merit.
[ 26 ] Given the multiplicity of costs related issues before him Justice Quigley imposed strict timelines and terms to ensure the costs issue would proceed efficiently and expeditiously to trial.
[ 27 ] Justice Quigley did not want to deny Mr. Fockler his remedy to seek costs against the solicitors if he did so in a timely manner. The factum of Mr. Wagner sets out the following timelines and compliance pursuant to the November 3, 2011 endorsement of Justice Quigley:
What
When
Compliance
3 COST ORDERS: Rhys Fockler must satisfly all outstanding costs orders against him. Should those costs orders not be paid in full by that date, then no further motions in this -proceeding are to be accepted by the court for filing from Rhys Fockler, without leave of the court.
By the close of business on Thursday December 15, 2011
He paid cost orders owed to Deann and Devra Parker by the deadline. Justice Quigley’s endorsement of December 19, granted Rhys until December 31, 2011 to pay Ms. Whaley and Mr. Wilson. Rhys complied.
4 RULE 57.07 MOTIONS. Mr. Rhys Fockler and Mrs. Fockler had to provide formal notification of his intention to proceed with motions under rule 57 against any of the solicitors who acted in this litigation. That notice was to provide sufficient particulars to Mr. Wagner and/or Mr. Swadron to permit either or both of them to understand the nature and scope of the claim and the particulars that are claim to support it in sufficient detail to permit the solicitors to retain and instruct counsel through Law Pro to represent them in respect to such proposed proceedings.
December 15, 2011
Rhys did not comply. He sent, by email, an unsigned motion record on Friday January 6 and 7 which included a document with only bald allegations and no particulars.
Cost outlines. Service
December 15, 2011
Done by all except Dorothy
Affidavit Evidence by all parties
January 30, 2012
TBD
Details of specific costs claimed under Rule 57.07. To be particulars served and filed with the court.
January 30, 2012
TBD
Supplementary Affidavit Evidence. By all parties
March 15, 2012
TBD
What
When
Compliance
Factums and Books of Authorities
May 1, 2012
TBD
Trial
May 22-24, 2012
[ 28 ] In his November 3, 2011 endorsement Justice Quigley ordered that all counsel advise him in writing of steps taken to comply with his order on or before December 15, 2011 and scheduled a meeting on December 19, 2011 to discuss compliance issues and next steps.
[ 29 ] At the December 19, 2011 hearing, and in his December 28, 2011 endorsement, Justice Quigley, addressed outstanding cost orders. Mr. Fockler was given a grace period until the end of December 2011 to pay the mediators their cancelation fee. Justice Quigley ordered both Rhys Fockler and Dorothy Fockler to provide formal notification in writing of intention to proceed with R.57.07 motions against any of the solicitors who acted in this litigation on or before December 15, 2011. The notices were to provide sufficient particulars to permit the lawyers to understand the nature and scope of the claim set out in paragraph 8 of that order.
[ 30 ] Justice Quigley denied Rhys Fockler’s request for further grace periods and further extensions. In paragraph 5 and 6 of his endorsement:
5 ….The time limits imposed by my order of November 3 following the October 26 all day scheduling hearing were put in place for a number of reasons as I indicated in my November 2, endorsement. Foremost among those reasons were to bring discipline to these proceedings by putting a schedule and time limits in place that would have to be adhered to by all parties in order to permit this matter to proceed to the four day costs trial scheduled for May 22-25 2012. At present, failure to formally provide notice under rule 57.07 and to provide particulars leaves counsel in limbo. They cannot commence to defend against such claims because they have not formally been commenced.
6 ….the orders of November 3 in this matter were not intended to be suggestions. They were time limits imposed with six weeks of advance notice as part of the scheduling plan put in place that day. It prejudices counsel given the deadline that was imposed to not adhere to it. And it potentially prejudices the May 22 date given the numerous other scheduling issues that exist for each of the numerous parties. It would not be fair or just in this case to permit either Rhys Fockler or Dorothy Fockler to bring those motions outside of the time period set two months ago without obtaining leave. As such neither Rhys Fockler nor Dorothy Fockler may pursue motions against solicitors involved in these matters under Rule 57.07 unless they obtain leave from another judge of this court on notice.
[ 31 ] In his November 3, 2011 order Justice Quigley imposed a test for leave. He ordered that the test for leave should be the same and apply the same standard as would apply under R.48. It is clear that once a matter is set down for trial the granting of leave is not a mere technicality. Before leave can be granted for other interlocutory proceedings, there must be a substantial or unexpected change in circumstances such that a refusal to make an order under Rule 48.04(1) would be manifestly unjust. (See: Hill v. Ortho Pharmaceutical (Can.) Ltd. , [1992] O.J. No. 1740, 11 C.P.C. (3d) 236 .
[ 32 ] In my review of all the facts and circumstances of this case, it would be unfair to the other parties involved to grant Mr. Fockler the relief he seeks. I bear in mind the deadlines provided to him were set down on October 28, 2011 some three months ago. I also find that there is no change in circumstances (substantial, unexpected or otherwise) to justify granting leave to bring the motion now.
merits and chances of success
[ 33 ] Even with the late filing of the formal notice of this motion as required by the Rules and Justice Quigley’s orders, if I saw fit to grant leave, I must be satisfied that the claim has merit.
[ 34 ] The burden is on Mr. Fockler to satisfy me that if I grant leave he has not only a genuine issue but a reasonable chance of success in his claim. As set out in the line of summary judgment cases he must “put his best foot forward”. In review of Mr. Fockler’s evidence against the solicitors I am not convinced he has a case for costs against the solicitors. The Supreme Court in Young v. Young , 1993 34 (SCC) , [1993] 4 S.C.R. 3, 108 D.L.R. (4 th ) 193 established the principle on which costs are awarded against a solicitor. Mr. Fockler must cross a high threshold. As the Supreme Court stated, courts must be extremely cautious in awarding cost personally against a lawyer given the professional duties of counsel: “[A] lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties …” ( Young at para. 69 ).
conclusions
[ 35 ] In my review of all the materials and specifically Mr. Fockler’s affidavit on this motion it is clear that these proceedings are and have been highly acrimonious and charged with emotion. They have also been lengthy. In my review of the materials filed by Mr. Fockler, I am not satisfied that the lawyers against whom he wishes to pursue costs demonstrated any abuse of process, delay, bad faith or egregious conduct that warrants granting Mr. Fockler leave to pursue costs against them personally.
[ 36 ] In the end, on the evidence put forward on this motion by Mr. Fockler, I am not satisfied that leave should be granted to pursue costs against the solicitors where I conclude there is no reasonable chance of success. Moreover, I conclude that granting leave would only further delay, complicate and add further expense to proceedings that Justice Quigley sought to control.
[ 37 ] In my earlier endorsement regarding Mrs. Fockler’s representation I referred to Mr. Fockler’s conduct which derailed the motions from proceedings returnable before me on January 18, 2012 as scheduled. As I review the events to date and, more particularly, my limited involvement in the motions before me, I conclude that Mr. Fockler’s conduct and his refusal to comply and facilitate the orders of Justice Quigley have attributed a further delay and added to expense of those involved.
disposition
[ 38 ] For these reasons, Mr. Fockler’s motion for leave to pursue a R.57.07 claim must fail.
[ 39 ] Counsel did not have the opportunity to argue costs. They may do so in writing following the release of this endorsement.
KRUZICK J.
RELEASED: January 31, 2012