SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 46697-12

DATE: 2013-07-05

RE: Harinder Singh Sangha, Applicant

AND:

Barinder Kaur Sangha, Respondent

BEFORE: The Honourable Mr. Justice G. A Campbell

COUNSEL:
Diane LaRocque, for the Applicant

David Olsen, for the Respondent

HEARD: July 2, 2013

ENDORSEMENT

[1] As counsel are well aware, these motions presently before me (the Applicants motion first returnable on June 28, 2012 and Mr. Bennett’s motion first returnable May 24, 2013) have had a convoluted history. They were both scheduled to be argued on July 2, 2013. Appropriately Mr. Bennett’s Motion, (found at Tab 35 of the Continuing Record) proceeded first, and, pending my decision on his issues, Mr. Sangha’s motion, (found at Tab 14 of the Continuing Record) has been adjourned without date.

[2] The above two motions arise from the result of two cross motions brought by the parties in June 2012, culminating in a flurry of affidavits and motions short served and responded to, thus engendering additional last minute responses and replies to those responses.

[3] Reilly, J. presided over what appears to be several long motion arguments on June 14, 15 and 19, 2012. Mr. Cook and his colleague Ms. Hussein had represented the Respondent throughout the period from early June 2012 until replaced by Mr. Olsen.

[4] By his motion dated June 26, 2012, returnable two days later, the Applicant listed seven examples of malfeasance and unprofessional conduct levelled against Mr. Cook, Ms. Hussein and Nanda and Associates.

[5] Upon examining the affidavit filed at Tab 15 in support of his “urgent” Motion for substantial indemnity costs against Cook, et al, pursuant to Rule 24 (9), other than setting out the timing of the service of motions and the extensive affidavits sworn by the Respondent, the Applicant has not set out the particulars upon which he relies to obtain such an order.

[6] On June 28, 2012, as a result of the Applicant’s Tab 14 motion, Flynn, J., quite rightly adjourned the motion for costs against Cook et al to July 12, 2012. He addressed the previous Reilly, J. motions/orders as follows:

Yesterday a motion was served seeking costs against Mr. Cook personally. As a result of that development Mr. Cook advised the court that the respondent wishes to retain other counsel to argue this motion. The motion is adjourned to July 12, 2012 at 10:00 a.m. (motion should be given some priority so Ms. LaRocque can attend an important medical appointment at 3 p.m.). The respondent shall have access on June 30, Jul 1, July 7 and July 8 from noon until 6 p.m. Paragraph 4 of Reilly J.’s order of June 19, 2012 is to continue.

Costs of today reserved to the judge on July 12, 2012. The motion for costs against Mr. Cook is adjourned on consent to July 26, 2012 at 10:00 a.m. Cost reserved to that day also.

No further affidavits are to be filed with respect to the motion adjourned to July 12, 2012.

[7] Mr. Olsen replaced Mr. Cook et al on July 10, 2012, so, of course the July 12, 2012 date was adjourned to July 26, 2012. Ms. LaRocque became ill during that hiatus so the July 26, 2012 date was also adjourned to August 9, 2012.

[8] It is interesting and informative to note Reid, J.’s July 26, 2012 endorsement:

As a result of the illness of counsel for the Applicant, the two motions for relief including interim custody are adjourned on consent to August 9, 2012 without prejudice to the claim of either party.

There is also a motion outstanding concerning a claim for costs against the former solicitor, G. Cook, by the Applicant. C. Clemmer attends on that matter on behalf of counsel.

Not on consent, that matter is adjourned sine die to be brought back by either party on 7 days notice.

[9] It is clear to me that Reid, J. severed the progress of the custody/access/support stream of claims from the costs-sought-against-the-former-lawyers claim, which, not on consent, he adjourned without date.

[10] On August 9, 2012, Sloan J. wrote a two page endorsement, alluding to the Cook costs claim but focussed mainly on the impending custody/access/support claims.

[11] Those two motions (at Tabs 4 and 17 of the Continuing Record) were argued before me on September 13, 2012. After I explained my decision regarding the custody/access/support issues, costs were addressed. I set costs for that day at $3,000, which amount included a counsel fee for 10 hours preparation and an attendance for the argument.

[12] I also ventured to set the amount for the Applicant’s claim against the Respondent (or Mr. Cook et al) at $25,000 for “all attendances, preparation, research etc. from the outset” which amount included the $3,000 that I had just awarded for the September 13, 2012 attendance. The “all-in” $25,000 also included all disbursements and H.S.T.

[13] The only issue that remained outstanding regarding those fixed costs was whether the Respondent or her former lawyers Cook, Hussein and Nanda were to pay the entirety of that order or what portion of the total, if any, each or any of them was to pay.

[14] In other words, I seized myself of the determination of the apportionment of the costs of $25,000, among Ms. Sangha, Mr. Cook, Ms. Hussein and Nanda and Associates.

[15] Mr. Bennett has now been retained to speak for Cook et al and as such has brought the Motion found at Tab 35. That Motion was argued before me on July 2, 2013.

[16] In his Motion Mr. Bennett raises the issue of the propriety of Ms. LaRocque continuing to appear as counsel on the Applicant’s Tab 14 Motion. It is important and informative to note that particulars of the allegations against Mr. Cook et al are contained in the affidavit of Terresa Lynn Janssen (found at Tab 11 of the Continuing Record). By that affidavit several important facts become clear, namely that:

a) Ms. Janssen has extensive, personal, first-hand knowledge of the events and the process upon which the allegations of professional impropriety, false representations to the court, failure to appear and sharp practice are based.

b) Ms. Janssen’s affidavit cannot be described as one of the type of affidavits that are common in litigation whereby the lawyer him\herself “tells” his\her law clerk the facts and the clerk swears to the facts based upon his\her knowledge and belief as told by the lawyer. That usual method of bringing evidence before the court, indirectly, from the lawyer that appears on the motion him\herself is quite common and is regularly used on motions to get off the record. Indeed, Mr. Bennett has availed himself of that process by including the affidavit of Dawn Elizabeth Phillips-Brown (at Tab 36 of the Continuing Record) by which he wished to place certain evidence of the progress of the motions before me. There is nothing wrong or unseemly with the practice. However, having read Ms. Janssen’s affidavit, it is clear to me that her affidavit contains all of the evidence necessary from which Mr. Cook et al can glean the particulars of their alleged unprofessional conduct.

c) It was Ms. Janssen who prepared all of the documentation; sent and received the faxes; typed the letters for Ms. LaRocque to sign; and attended the argued motion before Reilly, J. on June 15, 2012 at which time she, herself, heard the alleged misrepresentations made by Ms. Hussein to Reilly, J.

Ms. Janssen’s affidavit makes clear that the evidence against Mr. Cook et al is based on her own observations and involvement. Ms. LaRocque and Mr. Sangha are only peripherally mentioned\involved in the unfolding of the complaints (see paragraph 9 third, sentence; paragraph 12, second sentence and paragraph 14 regarding the adjournment of the June 14, 2012 motion).

[17] Accordingly I can find no cogent or legal reason why Ms. LaRocque cannot continue as counsel on her client’s Tab 14 motion. Of course Ms LaRocque will be constrained from venturing outside of the four corners of Ms. Janssen and Mr. Sangha’s. Perhaps she is privy to additional or other evidence, but she may not allude to it and is restricted to the extent of the pleadings already in the Continuing Record.

[18] Regarding Mr. Bennett’s request in paragraph 2 c) of his motion for directions that the Court should direct Ms. LaRocque “to file proper Affidavit material...”, Ms LaRocque’s client’s pleadings are complete. Mr. Sangha is required by the Rules and case law to put his best case forward at the outset. He cannot split his case and now offer new or additional evidence of the alleged improprieties. (see Rule 14 (20) 1.)

The Party making the motion shall serve all the evidence in support of the motion with the notice of motion. (my emphasis)

[19] Mr. Sangha’s claim for relief against Mr. Cook et al will “live or die”, based upon the evidence that he has already put forward.

[20] Counsel may decide to question Mr. Sangha, Ms. Janssen, Mr. Cook and/or Ms. Hussein under oath so that s(he) may obtain more particularity of the seven identified instances upon which on Order pursuant to Rule 24 (9) is sought. To that end, I grant leave to do so, as long as those attendances are scheduled and completed by August 31, 2013. Otherwise, the motion shall proceed on the sworn affidavit evidence of Ms. Janssen, Mr. Sangha and Mr. Cook (at Tab 37 of the Continuing Record) and the transcript of the hearing before Reilly, J. on June 15, 2012 and the additional affidavits I allow as set out below.

[21] Regarding the challenging issue of Ms. Sangha’s privilege of confidentiality between her and her former lawyers, although most of the submissions heard and the case law submitted on July 2, 2013 focussed on this almost sacred entitlement, I have concluded that her confidentiality is an issue that is not relevant to the Rule 24(9) claim and need not be decided by me at this time. I am also not persuaded to adjourn Mr. Sangha’s Tab 14 Motion until after the custody/access/support issues have been decided on a final basis, either after trial or by way of a consent order.

[22] Whatever Ms. Sangha disclosed, asserted, claimed or revealed to Mr. Cook or Ms. Hussein and regardless of what advice she sought or was given by either of them (and whether she accepted or rejected that advice) and regardless of her instructions to Mr. Cook and/or Ms. Hussein, it is the lawyers’ actions themselves to which Mr. Sangha takes exception and of which he complains. For example, in the face of clear legislation (see C.L.R.A. ss.20(4) and 22(2)) and decades of case law regarding the “habitual residence” of a child, the lawyers elected to bring an ex parte motion in Brampton and (Mr. Sangha alleges) intentionally:

(a) with the actual knowledge or an imputed awareness that Mr. Sangha already had retained counsel and intended to bring an application in the jurisdiction in which the child clearly habitually resided, chose to proceed, without notice to Mr. Sangha, in a jurisdiction and forum convenient to them and Ms. Sangha,

(b) did not expeditiously (or in a timely way), serve the ex parte order obtained “together with all documents used on the motion” on Mr. Sangha as is mandated by Rule 14(15),

(c) failed to appear on a properly scheduled motion on June 14, 2012 before Reilly J., then made “false representations” to Reilly J. on June 15, 2012 regarding why they did not appear on June 14th, and

(d) engaged in “sharp practice” by, inter alia, intentionally delaying service of documents on Mr. Sangha (or his counsel) until the last moment (see paragraph 12 of Janssen affidavit at Tab 11) and by Ms. Hussein presenting only some of the correspondence between counsel to Reilly, J. in order that he would be misinformed of the true state of matters between counsel and further misled the presiding justice regarding in which of the jurisdictions the applications were proceeding.

[23] Of course Mr. Sangha relies heavily on the “phantom” phone conversations to which Ms. Hussein referred before Reilly J. on June 15, 2012 and which calls Ms. Janssen avers never occurred.

[24] None of these allegations, nor the evidence upon which they are based involve information disclosed, or advice sought or given as between Ms. Sangha and her then counsel.

[25] Depending upon the outcome of Mr. Sangha’s Rule 24(9) (c) motion, Ms. Sangha may decide that, as between herself and Mr. Cook (or Ms. Hussein), her interests were compromised by their actions, their lack of attendance on June 14, 2012 or by their “sharp practice”. That is for her to decide and at that time, (as Mr. Bennett correctly submits), the solicitor-client privilege will be waived should Ms. Sangha decide to register a complaint with counsel’s licensing body regarding her own counsels’ actions, (or lack thereof) advice or decisions. (eg: by starting an action in O.C.J. in Brampton).

[26] I am not persuaded that for the purpose of the relief claimed and the allegations made in Mr. Sangha’s Motion that Ms. Sangha needs to be ordered to waive her solicitor-client privilege so that Mr. Cook et al can “prepare proper responding materials to make full answer and defence to the allegations ...”.Mr. Sangha’s point is that regardless of Ms. Sangha’s instructions or circumstances, her lawyer(s), as officers of the court and pursuant to Rule 2(4) and (3), had a duty to “help the court”:

(a) ensure that the procedure is fair to all parties,

(b) save time and expense, inter alia.

[27] He argues that the lawyers:

(a) failed to discharged their duty as mandated by the Rule;

(b) did not “act in good faith with all persons with whom (they, the lawyer) has dealings in the course of his/her practice”. (See Rules of Professional Conduct Responsibility to the Profession Generally 6.03(1); and

(c) did not “avoid sharp practice and (shall not) ... take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights (see 6.03(3) supra);

(d) did not “... conduct himself or herself in such a way as to maintain the integrity of the profession” (see 6.01(1) supra); and

(e) did not attempt to “... avoid even the appearance of impropriety.” (see 6.01(1) supra).

[28] Indeed, Mr. Sangha’s position is that Mr. Cook and Ms. Hussein intentionally and actively, by their joint and several decisions and actions subverted both the intent and the letter of the Family Law Rules and the Rules of Professional Conduct. Whether he can prove that claim is another matter and yet to be argued.

[29] Whether (or not) Ms. Sangha encouraged or instructed the course of action chosen by Mr. Cook et al, in my view is entirely irrelevant to the lawyers’ decisions and actions, to Mr. Sangha’s claim and to their potential personal liability for the costs ordered.

[30] I therefore find that the Rule 24(9)(c) motion need not await the final resolution of the Sanghas’ custody/access/support dispute since, in my view, the determination of what portion of the already fixed costs should be assumed by Mr. Cook et al, if any, has nothing to do with Ms. Sangha’s credibility, disclosure, instructions or believability. Counsels’ alleged acts of impropriety are entirely separate from any instructions they received and cannot be attributed to Ms. Sangha. They had carriage of the proceeding and Mr. Sangha alleges that they acted unprofessionally. He asks the court to make a Rule 24(9)(c) order, as a deterrent to them and others in order to maintain the integrity of the justice system (see Weening v. Weening (2004), O.J. No. 4977 Sup. Crt.).

[31] In the case of Al-Mutten v. All-Ekaki (2003), 2003 1945 (ON SC), O.J. 2605, S.C.J. Family Court) Marshman J. was able to separate the litigant’s persistent lies from the actions of her counsel, observing at para. 19 of her costs decision:

“... there can be no question that (counsel) is at least partially responsible for the trial taking 15 days. He is also responsible for filing materials on behalf of the wife that he knew or ought to have known were spurious. Long after he should have realized that the wife’s position was untenable, he continued to advance it. ... There is no reason that he should not bear responsibility for at least a portion of the costs in which his client is responsible.” (my emphasis)

[32] Accordingly, I direct that:

(a) Mr. Cook, Ms. Hussein and an appropriate person with NANDA & Associates may prepare, serve and file one affidavit each on or before July 31, 2013;

(b) leave for questioning under oath of Mr. Sangha, Mr. Cook, Ms. Hussein and Ms. Janssen is granted provided that same is completed by August 31, 2013 and transcripts of such are available to counsel by September 13, 2013;

(c) the relief sought in paras. 2 (a), (b) and (c) of the Motion at Tab 35 of the Continuing Record are dismissed without costs;

(d) Mr. Sangha’s Motion at Tab 14 is adjourned to a long motion before me on a date to be set by the trial coordinator in Kitchener, during the weeks of September 30 and October 7, 2013 (allow one day);

(e) no further/other affidavits may be served or filed without my leave;

(f) costs of the Tab 35 Motion for directions, argued on July 2, 2013 are set in the amount of $2,000 plus H.S.T., in the cause;

(g) Mr. Sangha’s Motion at Tab 38 of the Continuing Record is adjourned to a date to be set by the trial coordinator to proceed within 30 days hereof. Ms. Sangha shall have 10 days here from to serve and file her response Mr. Sangha may reply thereto within 5 days thereof.

[33] Although, in my view it is too late for it to enter into the costs dispute, both Mr. Bennett and Mr. Olsen raised the issue of the quantum of the costs award of $25,000 that I set on September 13, 2013. Although Mr. Olsen was present when the costs amount was fixed and, given that Ms. LaRocque sought to have the court assess all of those costs against Mr. Cook et al (and not his client Ms. Sangha) he did not challenge the amount or whatever was ever included therein.

[34] Mr. Bennett (and now Mr. Olsen, since his client will be responsible for whatever portion not ordered payable by Mr. Cook et al) wants to see the bills upon which the costs award was based. They are concerned that included therein are expenses and counsel fees for the originating Application and other preliminary services rendered which cannot (or at least should not have) formed part of the various motions eventually argued before me on September 13, 2012. Ms. LaRocque hastened to accede to those requests and I leave it to counsel to satisfy themselves about that aspect of the matter. Accordingly I make no order in that regard.

[35] Regarding paragraph 32 above, although I am “dismissing” parts of the relief sought in the Tab 35 Motion for directions, I have decided that the Motion was necessary and appropriate and, given both Mr. Olsen and Mr. Bennett’s objection to “the way I am (they are) being treated” by opposing counsel (an ironic complaint, given Mr. Sangha’s reliance on the Rules of Professional Conduct regarding courtesy and civility) I have decided that at least in that respect costs will not follow the cause.

[36] Accordingly, I have “set the number”, per Rule 24(10) for last Monday’s two hour attendance (and the preparation therefore) but have made it “in the cause” which allows me to consider that cost amount for that attendance, after hearing the arguments and deciding the main costs motion.

[37] I thank counsel for their preparation, focus and assistance.

G. A. Campbell

Date: July 5, 2013