ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-460478

DATE: 20140429

BETWEEN:

DARRELL S. WAISBERG
Plaintiff

– and –

J. KIRBY INWOOD, also known as JAMES KIRBY INWOOD, KIRWOOD INC., J. KIRBY INWOOD, carrying on business as CANLAW and CANLAW INC.

Defendants

Jennifer A. Greenwood, for the Plaintiff

J. Kirby Inwood, In Person for the Defendants

HEARD: 1 April 2014

REASONS FOR DECISION

MEW J.

[1] This case involves a lawyer who should know better and a litigant in person who seems to regard the courts as a playground in which he can play the role of the bully. Between them, their dispute has consumed reams of paper and countless hours of their own and the court’s time. Their behaviour does them no credit.

[2] Both sides have brought motions seeking wide-ranging relief. Their oral submissions consumed a full court day.

[3] It all started with a dispute over $550.00.

[4] Kirby Inwood and his company, Canlaw Inc. run “Canlaw Lawyer Referral Services”, an internet based service which refers prospective clients to lawyers who pay a fee for registering with the service.

[5] Mr. Inwood’s activities have brought him to the attention of the Law Society. In a Notice to the Profession, which is currently posted on the website of the Law Society of Upper Canada, members of the legal profession are advised:

“Since 2000, the Law Society has received numerous complaints from lawyers and members of the public about CanLaw….and J. Kirby Inwood. The complaints relate to communications received from CanLaw…or J. Kirby Inwood which are offensive and expose the recipients of the communications to hatred, contempt, abuse and obscenities.”

The Notice to the Profession goes on to advise lawyers not to use the service.

[5] Notwithstanding the Law Society’s advice, the plaintiff, Darrell S. Waisberg, a Toronto family lawyer, subscribed to Mr. Inwood’s lawyer referral service for some six years. However, in 2012 he decided not to renew his subscription with CanLaw as he felt it was no longer an effective tool for promoting his practice.

[6] On 16 May 2012, Mr. Waisberg received an invoice from CanLaw headed “Time to renew your full page ad on CanLaw”. The notice advised that Mr. Waisberg’s listing would expire on 15 June 2012. The reply portion of the invoice contained the printed words “yes! Please renew my Lawyer Referral Service, full page ad & listing on CanLaw for an additional 12 months for just $550.00 plus 5% GST TOTAL $577.50.” The invoice form then has spaces for credit card information to be inserted.

[7] Notwithstanding the content of the renewal form, Mr. Inwood points to CanLaw’s terms of use, which are posted on the CanLaw website. A copy, printed on 14 October 2012, was put in evidence. The document indicates that the terms of use were last updated on 10 May 2012. The terms of use include the following statement:

MEMBERSHIP TERM [sic] ARE AUTOMATICALLY RENEWED ANNUALLY UNTIL WE RECEIVE A FAXED OR MAILED SIGNED CANCELLATION NOTICE FROM YOU PRIOR TO THE END OF YOUR CURRENT MEMBERSHIP TERM.

[8] Mr. Waisberg did not respond to the 16 May 2012 invoice.

[9] On 11 July 2012, CanLaw sent Mr. Waisberg another invoice which, in addition to the wording of the earlier invoice, have these additional words:

“We are considering implementing a late payment charge for past due accounts. What do you think?”

[10] The same day, Mr. Waisberg says that he received “several harassing phone calls from Mr. Inwood, where he rudely demanded payment for CanLaw services that I did not renew.” Mr. Waisberg told Mr. Inwood that he did not wish to renew his services with CanLaw and had not, accordingly, completed the renewal form. He reiterated his view that he should not be charged for services that he had not renewed.

[11] Mr. Inwood counters that it was Mr. Waisberg who made the first call and that it was the plaintiff who was aggressive and abusive from the outset.

[12] According to Mr. Waisberg, Mr. Inwood behaved in an irate manner and “made several offensive racial slurs”. He alleges that Mr. Inwood thereafter phoned his office several times, each time making rude and vulgar comments such as calling him a “deadbeat”, “racist”, “thief” and a “cheat”, and threatening that “he would make me pay”. Mr. Waisberg says that Mr. Inwood also “blackmailed” him by threatening that if Mr. Waisberg did not renew his agreement with CanLaw, Mr. Inwood would post defamatory statements on his website, CanLaw, calling into question Mr. Waisberg’s integrity and competence as a lawyer.

[13] At 4:54 p.m. on 11 July 2012, Mr. Inwood sent the following email to Mr. Waisberg:

“You are a racist. You are a deadbeat and cheat.

No one said anything about your religion and ethnicity

You obviously used that attack to distract and cover your thefts.

It doesn’t work with me and it sure reflects badly on you. But then, that is probably something you do all the time as you probably do not pay your bills in many cases

I will check your credit score…..probably under 200.

You owe us for the renewal and we will collect. We will add something for the racist slur. You had the option to cancel and you did not.

I am going to make sure you pay. I am also going to file a complaint with LSUC. Including your racist comments.

They keep track of complaints about lawyers who do not pay bills. When you hit some magic number, they discipline you.

Then they will post a notice about you.

We have been doing this longer than you have been in law. We will win. You will lose.

You can make a book on that.

We have posted a warning to people effective NOW and it will not be removed.

See you in court deadbeat.

J.K. Inwood”

[14] Within an hour of this email, Mr. Inwood sent further emails to Mr. Waisberg, one of which attached a draft Plaintiff’s Claim (the originating process in Small Claims Court actions) and another stating:

ANY FURTHER CONTACT FROM YOU OTHER THAN THROUGH COUNSEL, WILL BE REPORTED TO THE POLICE.

STOP PHONING AND HARASSING US WITH YOUR RANTS. DO NOT EMAIL OR FAX US. THIS IS YOUR ONLY WARNING.

[15] At approximately 6:00 pm on 11 July 2012, Mr. Waisberg discovered that the CanLaw lawyer referral website had posted the words “DO NOT USE THIS LAWYER” in connection with Mr. Waisberg’s listing.

[16] The same evening, Mr. Waisberg’s associated lawyer, Jennifer Greenwood (who also happens to be his spouse) sent Mr. Inwood a cease and desist letter, the last paragraph of which stated:

“Kindly remove the ….defamatory comment about my client from your website or we will be seeking injunctive relief without further notice to you and will be holding you liable from this moment forward for any damages resulting to my client as a result of your defamatory web posting. Further, please refrain from directly corresponding through any form of communication with my client outside counsel or we will be contacting both the London and Toronto police. Any actions pursued by you against my client will be vigorously defended.”

[17] On 11 July 2012 Mr. Waisberg alleges that Mr. Inwood also falsely and maliciously posted the following statement on a lawyer ratings website stating:

“do not use this lawyer. We have had experience with him for several years and wish we had never heard of him.” “J.K.I.”

The initials J.K.I. were associated with this posting. On the same website, on 16 July 2012, the comment “I would like to hear no more about Waisberg” was added. Again, the initials J.K.I. were underneath.

[18] Ms. Greenwood wrote a further, short, cease and desist letter to Mr. Inwood on 16 July 2012.

[19] Also on 16 July, Mr. Inwood had issued a Plaintiff’s Claim in the Toronto Small Claims Court seeking $577.50 for the unpaid CanLaw invoice, administration expenses of $250.00 incurred in trying to collect the account and punitive damages for “racist comments” of $20,000.00, it being alleged that Mr. Waisberg had falsely accused Mr. Inwood of being anti-semantic.

[20] On 26 July 2012 Mr. Waisberg caused a notice under the Libel and Slander Act to be served on Mr. Inwood, inter alia, in the matter set out above. Mr. Inwood was served at 5:15 p.m.

[21] At approximately 10:00 p.m. the same day, Mr. Waisberg’s office email inbox was flooded with over 30 emails, some of them embarrassing, alleging that he had subscribed to various random online publications relating to health, addiction, aging and similar subjects, none of which the plaintiff has (or would have), in fact, subscribed to.

[22] Mr. Inwood denies having anything to do with these emails.

[23] Having received no satisfaction from Mr. Inwood, on 2 August 2012, Mr. Waisberg commenced the current proceeding by notice of action.

[24] On 20 August 2012, Mr. Waisberg brought on a motion seeking an interlocutory injunction restraining the defendants from “disseminating, posting on the internet or publishing in any manner whatsoever, either directly or indirectly, any defamatory statements concerning Darrell S. Waisberg, or his employees, associates or agents”. The plaintiff also sought a mandatory order requiring the defendants to remove all postings made by them on the internet that either directly or indirectly concern him.

[25] Mr. Inwood sought an adjournment of the motion in order to retain a lawyer and file responding materials.

[26] Mr. Justice Morgan heard the motion. His endorsement reflects that both sides had agreed that the impugned postings had, by the time of the motion, been removed. Morgan J., in the course of granting the adjournment, noted:

“In my view, the emails written by the Defendant directly to the Plaintiff, while written in language that could otherwise be defamatory, are confined to the Plaintiff as their sole audience and so are more of an annoyance than anything (although potentially a very distracting and painful form of annoyance). The internet postings, on the other hand, clearly could form the basis of a defamation action (without determining the merits of that claim at this preliminary stage).”

[27] Morgan J. declined to issue an injunction as a term of adjournment on the basis that the urgency of the matter had not been established. However, he made that ruling without prejudice to Mr. Waisberg’s right to come back to the court on an urgent basis “if, pending the return of this motion, any defamatory statements about the Plaintiff or his law practice and/or his employees is posted on the internet by any of the Defendants or by persons prompted to do so by the Defendants.” Morgan J. also ordered, given the harsh communications contained in the Plaintiff’s motion record, “that the Defendants cease and desist from any and all direct communication with the Plaintiff and/or his employees and anyone associated with his law practice, and that the Defendants only communicate with the Plaintiff through counsel.”

[28] An unusual and professionally disturbing aspect of the motion before Morgan J. has subsequently emerged.

[29] The plaintiff’s motion record in relation to that motion contained an affidavit of Darrell S. Waisberg. The affidavit purported to be signed by Darrell Waisberg before Jennifer A. Greenwood, a Commissioner for taking affidavits. The typewritten date on which the affidavit was to have been sworn – 8 August 2012 – is amended by hand to 10 August with the change initialed by “J.G.” and “D.W.”

[30] The signature on Mr. Waisberg’s affidavit is not his own. It turns out that Ms. Greenwood signed the affidavit for him and then purported to commission that signature.

[31] Section 9 of the Commissioners for Taking Affidavits Act R.S.O. 1990, c. C.17 provides:

“Every oath and declaration shall be taken by the deponent in the presence of the Commissioner, notary public, justice of the peace or other officer or person administering the oath or declaration who shall satisfy himself or herself of the genuineness of the signature of the deponent or declarant and shall administer the oath or declaration in the manner required by law before signing the jurat or declaration.”

[32] Mr. Inwood noticed that what purported to be Mr. Waisberg’s signature on his 10 August 2012 affidavit was radically different from other examples of Mr. Waisberg’s signature that Mr. Inwood had in his file. He engaged the services of a forensic document examiner who concluded that it was within a “high degree of probability that the question signature presenting as that of Darrell Waisberg…was written by Jennifer A. Greenwood.”

[33] Mr. Waisberg subsequently acknowledged, in an affidavit sworn on 27 May 2013, that this was, in fact, the case. He explained his and Ms. Greenwood’s conduct in these terms:

“With respect to the signature on my Affidavit sworn August 10, 2012, I authorized my wife and counsel, Ms. Jennifer Greenwood, to sign this Affidavit on my behalf as I had to leave the office early that day as I was sick with a bad case of the stomach flu. Prior to her signing the Affidavit on my behalf, she had emailed it to me along with the Exhibits, I reviewed it carefully and I told her that I swear that the contents are true so help me God, and that she was authorized to sign it on my behalf. August 10, 2012 was a Friday and the Affidavit had to be sent by overnight courier that evening to the process server in London, Ontario for service on the Defendants and I was worried that the courier deadline would be missed and that the Motion would not proceed. There was no time for Ms. Greenwood to drive home to have me swear the Affidavit, and I was violently sick and unable to attend at the office to swear same. With my authorization, Ms. Greenwood wrote my name incursive in the Affidavit above my name, rather than try to replicate my signature. There was no intent to mislead anybody or create a false document or forgery. I am not aware that anyone was prejudiced by this.”

[34] Mr. Waisberg also filed with the court an affidavit identical in its content to the original document dated 10 August 2012, but with the jurat “Sworn….as of August 10, 2012 on May 27, 2013”. Ms. Greenwood commissioned Mr. Waisberg’s signature on his document.

[35] The taking of evidence under oath or solemn affirmation is a fundamental aspect of our system of justice. It imposes responsibilities not only on those who provide evidence but, also, upon those who take such evidence as commissioners for oaths, notaries public or other individuals authorized to do so by virtue of their office or professional status. Mr. Waisberg’s assertion that no-one was prejudiced misses the critical point that by passing off the 10 August affidavit as authentic, he and Ms. Greenwood breached both the Commissioners for Taking Affidavits Act and their duties as officers of the court.

[36] Ironically, the relief now sought by Mr. Waisberg includes an order that Mr. Inwood is in contempt of Mr. Justice Morgan’s order - an order that was obtained on the basis of an affidavit that was not, at the time, Mr. Waisberg’s sworn testimony.

[37] I will address the consequences of the conduct of the plaintiff and his lawyer in relation to the 10 August 2012 “affidavit” – for the purposes of this motion at least – later in these reasons.

[38] The motion before Morgan J. was adjourned to 16 November 2012. Some time prior to that, Mr. Waisberg realised that he had failed to file a statement of claim within 30 days of the issuance of his notice of action. Accordingly, he sought an extension of time to file the statement of claim and, thereafter, serve the notice of action and statement of claim on the defendants. The motion also raised the issue of the alleged contempt of Mr. Inwood. The motion was adjourned, on consent, to 12 February 2013 and further adjourned on consent to 31 May 2013.

[39] The February 2013 adjournment was requested by the plaintiff. His son had been unwell and he had provided Mr. Inwood with a letter from a nurse practitioner at the Hospital for Sick Children addressed “to whom it may concern”, advising that Mr. Waisberg’s son was being closely followed at the hospital for an acute medical condition and asking that Ms. Greenwood and Mr. Waisberg be excused from any court duties and appearances as their son needed their support while in hospital.

[40] Having agreed to the adjournment, Mr. Inwood then saw fit to write to the nurse practitioner on 8 February 2013 asking whether issue which caused the original letter to be written was still valid or applicable on 6 February 2013, and further inquiring whether the child was actually admitted and was still in hospital as an in-patient on 6 February 2013. A blank summons to witness form was attached to Mr. Inwood’s letter to the nurse practitioner. Having received no response, he followed up again on 23 February, re-sending his earlier letter with the addition, in large print, of the words “We have not heard back from you on this. Please respond.”

[41] That is as far as Mr. Inwood went in his dealings with the nurse practitioner. But it would be remiss for me not to observe that such conduct is wholly unacceptable.

[42] The parties attended before Madam Justice C. Brown on 31 May 2013. The amount of time that had been allocated for the hearing of the motion was clearly going to be insufficient (by that time there was also a cross-motion from Mr. Inwood). Brown J. stated:

“It is clear that there is significant animosity between plaintiff’s counsel and Mr. Inwood with no cooperation between them.”

She went on to note that the plaintiff sought an adjournment due to the voluminous materials before the court and insufficient time scheduled for the motions. This request was acceded to, with a notation that a full day would be required.

[43] Brown J. made an order for substituted service of certain motion material which the plaintiff had attempted to serve on Mr. Inwood (Brown J.’s endorsement reflects that when attending at Mr. Inwood’s address and attempting to serve a gentleman there, the individual denied being Mr. Inwood. Mr. Inwood subsequently acknowledged to Brown J. that he had, in fact, lied to the process server because he was “fearful for his security”.) Brown J. ordered that service of additional documentation could be made by mail and that Mr. Inwood was to cooperate by signing and returning an acknowledgment of receipt or post office receipt of the documents (which he has allegedly since failed to do). She also ruled that in the circumstances service of one copy of all materials on Mr. Inwood would be sufficient service on all of the defendants.

[44] Brown J. also addressed the issue of a notice of dismissal of action, which was issued by the court on 30 January 2013. Given the pending motions, she ordered that the order of dismissal of action should not be acted upon until 3 months after the rendering of the decisions regarding the motions or further order of the court.

[45] Finally, Brown J. set the following terms of the adjournment, namely that:

1. All motion materials of the plaintiff are to be served and filed by 31 July 2013;
2. All motion materials of the defendants are to be served and filed by 30 September 2013;
3. All reply materials of the parties are to be served by 31 October 2013;
4. Cross-examinations on all supporting affidavits are to be conducted by 15 December 2013;
5. All facta are to be served by 30 January 2014; and
6. The motions are adjourned to 1 April 2014 for four hours.

[46] Brown J. ordered that there would be no order as to costs and that each party would bear their own costs.

[47] On 31 July 2012, the plaintiff filed a factum with the court in purported compliance with Madam Justice Brown’s order. A book of authorities and a supplementary motion record were filed on 2 August 2013 and a responding motion record was filed by Mr. Inwood on 8 August 2013.

[48] Notwithstanding the order of Madam Justice C. Brown, Mr. Inwood then attempted to bring a motion in writing during the week of 23 August 2013 for an order declaring that Mr. Inwood is within his rights as a self-represented litigant to communicate with Ms. Greenwood