SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
UNIMAC - UNITED MANAGEMENT CORP.
Plaintiff
-AND-
COBRA POWER INC.
Defendant
BEFORE: F.L. Myers J.
COUNSEL:
J.P. Baichoo, for the Plaintiff
L. Brazil, for the Defendant
HEARD: December 12, 2014
CIVIL PRACTICE COURT endorsement
The lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.
[1] This fundamental expression of every litigation lawyer’s duty is set out in the first Commentary under Article 5.1-1 of the Rules of Professional Conduct of the Law Society of Upper Canada. It is frequently cited, including in this case, by counsel who want to obtain procedural advantages for their clients and who push back against notions of communication, cooperation, and common sense leading to efficient, affordable, and fair civil justice. It is worthwhile, however, to look at the full Commentary and the ethical rule upon which it comments.
SECTION 5.1 THE LAWYER AS ADVOCATE
Advocacy
5.1-1
When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.
Commentary
[1] Role in Adversarial Proceedings – In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected. [Emphasis added]
[2] While counsel frequently cite the obligation to raise fearlessly every claim and defence, they do not as often mention that the rule being commented upon requires resolute and honourable representation. The rule speaks of “candour, fairness, courtesy, and respect” not to the judge, but to the tribunal – to the institution of civil justice. The Commentary itself speaks specifically of lawyers fearlessly representing their clients “in a way that promotes the parties’ right to a fair hearing in which justice can be done”.
[3] The obligation to fearlessly raise issues is not inconsistent with acting cooperatively, openly, and helpfully with opposing counsel and the court so as to try to bring about the quickest, least expensive opportunity for the fair resolution of the dispute on the merits. In Ashmore v. Corp of Lloyd’s, [1992] 2 All ER 486, 488 (H.L.) Lord Scarman wrote:
It is part of [the judge’s] duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. [Emphasis added]
[4] Fearlessly advancing the client’s case does not mean that process should be manipulated to prevent the opponent’s case from being heard. The lawyer’s duty is to promote a fair outcome, expeditiously, and inexpensively. Each side is to advance all issues, claims, and defences zealously and fearlessly to be sure. But the issues are to be advanced as part of the civil justice system which requires a fair and just resolution of the issues, claims and defences on their merits. As Justice Karakatsanis wrote recently in Hryniak v. Mauldin, 2014 SCC 7 at para. 28:
The principal goal remains the same: a fair process that results in a just adjudication of disputes.
[5] In an effort to decrease the costs and delays of the civil justice system and especially to try to change the prevalent motion culture in civil practice in Toronto, active case management is being implemented in accordance with Toronto Region Pilot Practice Advisory – Civil Practice Court (Regional – October 14, 2014, in effect until July 1, 2015). Counsel’s role in case management is more nuanced than in a no-holds-barred motion practice. As described in Bosworth v. Coleman, 2014 ONSC 6135:
- In a case management environment, counsel are expected and required to engage in cooperative steps designed to get the case ready for trial in an efficient manner focusing on the true merits … Counsel are not required to sacrifice one iota on the true substantive merits of their clients’ claims. But steps transparently seeking to obtain a procedural or tactical advantage in trial preparation and trial management are no longer appropriate (if they ever were). This may well represent a culture shift for some counsel, litigants, administrators and judges too. But it is one driven by the failure of the system to achieve many of its goals. As Justice Karakatsanis wrote in Hryniak, supra, at para. 28:
This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
- The court will work to assist the parties to develop accessible, i.e. proportionate, timely and affordable processes. This will include requiring counsel to fulfill their duties as officers of the court and may well include explicit recognition and eschewing of tactics and gamesmanship from another era. As with all paradigm shifts undertaken in a bureaucratic system, there may be bumps in the road. It is up to all participants in the system to work to surmount and lessen the bumps and provide a level and accessible playing field for all.
[6] This matter came before me in Civil Practice Court on November 24, 2014. It was clear to me then that counsel were not able to get along and that scheduling had become bogged down. I determined to take this matter under case management in accordance with the Practice Advisory.
[7] I saw counsel again on November 27, 2014 when I had more than the 10 minutes available during CPC. By that time, I was able to review the pleadings, a decision of Master Wiebe to which reference will be made below, and a proposed motion that had been scheduled unilaterally by the defendant for December 12, 2014 – a date on which counsel opposite was not available. The plaintiff also had an appeal outstanding from Master Wiebe’s order and wanted to schedule a full day for a hearing before a judge to stay that order, to prevent the defendant’s motion from being brought, and then to schedule a motion for summary judgment.
[8] Counsel were talking at each other rather than to each other.
[9] The action concerns a claim by the plaintiff for approximately $300,000 that it says it paid to the plaintiff for electrical work to be provided in respect of a Metrolinx construction project called the Willowbrook Project. The plaintiff was Metrolinx’ general contractor. It says that the defendant failed to deliver the services for which it was paid in advance by the plaintiff. The plaintiff wants its money back. If it is that simple, a motion for summary judgment could have been brought as soon as the defence was delivered. That is what the plaintiff now says it wants to do. The plaintiff pleads:
In or around September 23, 2010, the Plaintiff entered into a CCDC-4 1982 Unit Price Contract construction contract with Metrolinx, identified as Contract No. PT-2010-RCI-006 (the “Contract”), pursuant to which the Plaintiff agreed to supply general contractor services and materials for inter alia, the construction and rehabilitation of the Willowbrook Rail Maintenance Facility (the “Project”).
Accordingly, on or about January 19, 2011, Unimac issued a purchase order to Cobra in respect of certain electrical works that were needed to be performed and completed on the Project, in the amount of $530,663.82. Such electrical work was to be completed on an
immediate or on an as soon as possible basis (the “Purchase Order”).
- Unimac made payments to Cobra in the total approximate amount of $300,015.10, in
respect of the above noted Purchase Order. However, Cobra did not and/or failed to supply any of the electrical work required on the Project, and as contemplated by the Purchase Order.
- In this regard and despite Unimac's numerous requests, Cobra has failed and/or refused to return the amount of $300,015.10, to Unimac. Unimac accordingly, states that the amount of $300,015.10 is immediately due and payable to Unimac by Cobra.
[10] But, nothing is ever so simple. It is no surprise that the defendant denies the claim. It pleads:
Unfortunately, Unimac's failure as a general contractor contributed to significant problems with the Willowbrook Project and the Subcontract. Cobra was repeatedly asked to mobilize its workforce and to attend at the Willowbrook Project site, and upon arrival, discovered the site was not ready to accept Cobra's work, causing Cobra to needlessly incur costs of mobilizing and demobilizing its work force. In other instances, Cobra found that only a limited amount of work was available which, when completed, required Cobra to demobilize again until further work was made available by Unimac.
Unimac was wholly unable to organize, schedule and carry out the Willowbrook Project, and the Willowbrook Project site was and remained in chaos and wholly unorganized. As a consequence of Unimac's failure as a general contractor, the originally contemplated date for substantial performance of the Willowbrook Project was pushed back from March 18, 2011 to November 24, 2011 and ultimately to March 9, 2012, being almost a year from the original substantial performance date.
As of March 9, 2012, Metrolinx removed Unimac from the Willowbrook Project, which was only partially completed. The full particulars of the removal are within the knowledge of Unimac and are not known to Cobra. Unimac thereafter issued notice to Cobra and the other subcontractors on the Willowbrook Project that their subcontracts were at an end.
As a consequence of Unimac's removal from the Willowbrook Project, Unimac has failed to pay Cobra the full amount payable for its work on the said project (as particularized below) and has apparently failed to pay a number of its other subcontractors who have initiated actions against Unimac for non-payment and, in some cases, have filed claims for lien which include, but are not limited to, the following:
(a) Trenchline Construction Inc. - $1,006,050.65 (action commenced in Toronto);
(b) Cos Shore Inc. - $464,271.58 - (action commenced in Toronto);
(c) Terratecknik Environmental Limited - $92.292.44 (action commenced in Toronto);
(d) Total Meter Services Inc. - $unknown (action commenced in Toronto); and
(e) Daleor Inc. - $3,882,179.47 -lien only
[11] The defendant has counterclaimed for its alleged losses.
[12] The plaintiff has defended the counterclaim. Its defence to counterclaim starts with a complaint that the plaintiff’s counsel took nine months to provide requested particulars. The gravamen of the defence to the counterclaim is that the defendant is stalling:
The Defendants further state that Cobra has illegitimately attempted to convolute and misstate the facts in its Statement of Defence and Counterclaim in order to disguise and improperly join a construction lien reference in respect of the Metrolinx project in Toronto, Ontario being heard before Master Wiebe. This is despite the fact that Cobra does not have a construction lien, or a construction surety bond claim, or any other legitimate claim in respect of the Metrolinx project.
Unimac states that contrary to the allegations made by Cobra, Cobra was overpaid in respect of the Metrolinx project, and did not provide any of the services or materials in respect of the purchase order dated January 19, 2011, (the “P.O.”). Despite not having performed any work in respect of the P.O. Cobra demanded that it be paid the amount of $300,015.10, which was paid to Cobra by Unimac.
[13] The plaintiff commenced this action in Newmarket to keep it physically away from the various construction lien actions that arose from the Willowbrook project that are referred to in the statement of defence above. Those cases are being case managed by Master Wiebe in Toronto. Nevertheless, the defendant moved before the Master to change the venue of the case to Toronto and to refer it to the Master to be managed with the lien cases. The latter request requires the approval of a judge so the Master declined to give effect to that part of the motion.
[14] Master Wiebe heard the motion in November, 2013. He gave reasons for decision in December reported at 2013 ONSC 7936. The Master noted that in argument, the plaintiff’s counsel had complained about the manner in which opposing counsel had communicated with the court. Before me on December 12, 2014, the plaintiff’s counsel raised that same complaint against the defendant’s counsel before me (different counsel than before Master Wiebe). He said that the communication from counsel opposite to the court had been improper and “had it been done by anyone but her, this kind of misbehaviour would not have been tolerated”. I did not understand this submission. I do not know the defendant’s counsel nor am I aware of her having a special position or reputation that could suggest she might be seeking or receiving preferential treatment as compared to anyone else. I note that I find personalized complaints and accusations as between counsel unfortunate and generally unproductive.
[15] As to the choice of venue for the action, Master Wiebe found that there was no rational connection between the substance of the action and Newmarket as a venue. None of the events occurred in Newmarket. None of the parties are in Newmarket. The Master also held that there are economies to be achieved by hearing this action together with lien actions. As to timing, the Master found:
- Mr. Levine pointed out that, not only does Toronto have court facilities to match those of Newmarket, Toronto has a specialized construction lien court already charged with litigating closely related cases concerning the project that is the main subject matter of the Cobra Action. The education curve for the Toronto court that will likely hear the Cobra Action will therefore probably be substantially reduced as a result. I agree with both of these points.
[16] The Master held that the “local factors” and the “access to justice” factors that are relevant to a venue decision all favoured Toronto as venue. Accordingly, he transferred the case to Toronto to be managed by him with the other related cases if a judge agrees to make that referral (or if the parties consent). The plaintiff disagrees on the facts and in law and has appealed the Master’s decision to a judge in Newmarket. The appeal will be scheduled at a hearing in January with the appeal itself to be heard some months later. In the meantime, the defendant wishes to move before a judge for an order referring the case to the Master now that it is in Toronto. Hence, the plaintiff wants to bring a motion for a stay of the Master’s transfer to Toronto pending appeal to prevent the case from moving forward in step with the lien cases under the Master’s management while the appeal is outstanding.
[17] I pause to note that the Master is a construction lien specialist. I would not lightly second guess his view as to the common facts and issues between this case and the other lien cases that he is managing or the efficiencies to be gained by hearing them all together. He is in the best position to know, given his knowledge of the substance and procedural status of the lien cases and having reviewed the evidence and arguments before him concerning this case.
[18] On hearing the parties on November 27th, I was struck by the risk of delay due to the scheduling of the appeal. While there is no urgency to justify jumping this civil case ahead of others, there are procedural/efficiency risks if the lien cases get too far ahead of the status of this case, it seems to me. Moreover, given the plaintiff’s seeming desire to get its money as soon as possible, it seemed to me that looking for ways to speed up the appeal so that the parties can move forward on the merits could be helpful. I noted above that the Master heard the motion a year ago November. There is now in place a new process for motions to change venue. They are to be brought to the Regional Senior Justice in writing. The Regional Senior Justices deal with these motions very quickly and in consultation with the RSJ of the proposed receiving court – also an important input. I suggested to the parties that since the appeal is being brought to a single judge anyway, the appeal could be brought to RSJ Fuerst in Newmarket in writing and this would provide a very fast outcome for all. I did not order that the parties proceed in this manner as I left the plaintiff to weigh its desire for speed against counsel’s desire for an oral hearing. I did suggest to the parties, however, that proceeding with a quick written appeal appeared to be in keeping with the goals of efficient and affordable justice and that they could well trust that RSJ Fuerst would be more than capable of understanding their appeal issues in writing.
[19] The parties chose against proceeding with an early appeal and scheduled the case conference before me on December 12, 2014 to move forward with scheduling their competing motions. It was then that the plaintiff’s counsel advised that he would fearlessly raise all issues in order to get his client its money to which it is entitled and that he requires a summary judgment motion be booked right now to that end.
[20] But the plaintiff is appealing on venue. It does not accept that the action should be in Toronto. It declined to have that issue resolved quickly and it wants a stay pending the appeal. How then does a Toronto judge hear a summary judgment motion until the stay issue is determined? The plaintiff wants to stay everything in Toronto – except for the motion that it wants to bring.
[21] In order to try to break the logjam, the stay motion must be brought on. The referral motion can be heard with it as they are flip-sides of the same coin. Either the matter waits for the appeal in Newmarket in mid-2015 or the Master should get on with it while the appeal is pending, if the judge agrees to make the referral. In order to try to speed up the hearing of these motions, I asked counsel if the stay and referral to a Master can be heard on the material that was already used by them before Master Wiebe. From reading the Master’s decision, it appears there was a significant amount before him including cross-examinations. The stay flows from issues on the appeal which can only be heard on the material that was before the Master in any event. But, the plaintiff’s counsel says he wishes to file more material on the status of the action (although it appears to have stalled since the Master’s decision last December) and he will exercise his client’s right to cross-examine on anything filed by the defendant.
[22] Moreover, the plaintiff’s counsel fervently insisted that case management was not fair to his client: that I had only read the pleadings, Master Wiebe’s decision, and the defendant’s Notice of Motion that I was initially asked to schedule, but I had not read his client’s Notice of Appeal in Newmarket. He was clear that his client “takes issue” with the Master’s decision. He was also upset that the matter had been transferred to Toronto pursuant to the Master’s order. He accused the defendant’s lawyer of taking out the Master’s formal order without his input and requisitioning the file to Toronto without telling him so he could not seek a stay.
[23] Not a thing turns on when the physical file moved. The plaintiff remains as able today to bring its stay motion as it was a year ago. I have no idea why the motion was not brought in the 11 months between the time that the Master made his decision and the time Civil Practice Court started this past November. I again decline to deal with the complaints and accusations against opposing counsel. They remain unproductive.
[24] If, in questioning the fairness of case management, the plaintiff’s counsel means that it is not fair that his client has to allow the other side have a fair chance to put its case forward and that the court will help both sides move forward as efficiently and affordably as possible towards a fair and just hearing, then counsel has a job to do explaining the goals of the civil justice system to his client. If, counsel views the Master’s or my decisions as unfair, his client has its remedies. I do note that personalizing a client’s anger is not a helpful approach. The defendant’s counsel is doing its job as is the plaintiff’s counsel. The dispute is between the clients. Counsel are supposed to provide independence and bring an objective view to help the clients surmount their anger.
[25] So, what to do? The plaintiff wants its day in court to get its money right away, but it will not assist by agreeing to any steps to speed up processes that it has brought that get in the way of the outcome it seeks. Moreover, counsel advises that he will fearlessly raise all issues, rather than cooperating to allow for the defendant to tell its story too. Notwithstanding, and in fact, expecting fearless and zealous representation on both sides involves a recognition that there are two sides to every story and that counsel and the court are together obliged to provide for the fair hearing of both.
[26] Normally, one expects a defendant to stall and the plaintiff to ask the court to help speed up the case. But here, the plaintiff’s procedural tactics are blocking efforts to have its own case move forward. This is not consistent with the expectations of a case managed matter. Where a party wants to get a case on, it is incumbent on that party to be ready to push forward and that often means voluntarily forgoing technical and procedural rights in order to clear roadblocks. If a party insists on bringing every proceeding, demanding every hearing, and cross-examining on every affidavit, then “what’s good for the goose is good for the gander” and that plays right into the hands of the other side. But, here there is the added issue of the fact that the lien cases are proceeding. So it is the defendant who is incentivized to move forward to get before the Master sooner and the plaintiff who is stalling that option.
[27] The Master seems to be in the best position to assess the merits of the case. If he feels that summary judgment is appropriate and can be efficiently divorced from the other matters, he can hear it or refer it to a judge as necessary. But the matter has not been referred to the Master as yet, so that decision cannot yet be made either. However, by putting the scheduling of summary judgment into the Master’s hands (if a referral is made), I am hopefully aligning the incentives to make both parties interests converge on moving forward.
[28] Therefore, I am scheduling for an early hearing the plaintiff’s motion for a stay pending appeal and the defendant’s motion to refer the case to the Master. The motions will be heard together. The stay motion cannot possibly need a full day. The test for a stay is the well-understood three-part RJR test with an emphasis on irreparable harm pending the appeal. It is a straightforward motion. The appointment will be for two hours in total. The judge hearing the motions can always add more time if he or she needs more.
[29] Counsel advise me that they are available on January 12, 2015 for the hearing. I have scheduled a two hour block of time that day. I will not be hearing the motions as I will be away. The plaintiff will deliver before Christmas Day 2014, its motion record for a stay and its response to the motion already delivered by the defendant on its motion for referral to the Master. The defendant will deliver its responding material, if any, before the end of the year. Cross-examinations will occur on any of January 5, 6 or 7, 2015 as counsel agree. The party who examines will be responsible for providing overnight transcripts to the party opposite. Both parties’ facta on both motions will be served and filed by noon on Thursday, January 8, 2015. If there are any issues that arise that cannot be resolved between counsel immediately, I may be contacted by email to convene a telephone hearing at either 9:00 a.m. or 4:00 p.m. on that day or the next day. The email should not argue the issue or make accusations against counsel opposite.
________________________________ F.L. Myers J.
Date: December 15, 2014