COURT FILE AND PARTIES
COURT FILE NOS.: CV-13-477962 & FS-13-388450
DATE: 2015-10-27
Court File No.: CV-13-477962
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ALKA SINGH
Plaintiff
- and -
RAJEEV SINGH CHANDEL (a.k.a. RAJEEV KUMAR SINGH)
SHAKUNTALA SINGH
Defendants
Court File No. FS-13-388450
A N D B E T W E E N:
RAJEEV SINGH CHANDEL
Applicant
- and -
ALKA SINGH
Respondent
R U L I N G
BEFORE THE HONOURABLE MADAM JUSTICE KITELEY
on Wednesday, October 21, 2015, at TORONTO, Ontario
A P P E A R A N C E S:
Mr. Toor -
Mr. Ken Wise -
Counsel for the Plaintiff/Respondent
Counsel for the Defendant Rajeev Singh Chandel/Applicant
ONTARIO SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
W I T N E S S E S
WITNESSES
Examination
In-Chief
Cross-
Examination
Re-
Examination
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
There were no exhibits entered in this Ruling
Legend:
(ph)
- Indicates preceding word has been spelled phonetically.
[sic]
- Indicates preceding word has been reproduced and is not a transcription error.
Transcript Ordered:
Disk Received:
October 23, 2015
October 27, 2015
Transcript Completed
For review by the Court:
October 27, 2015
Ordering Party Notified:
October 27, 2015
WEDNESDAY, OCTOBER 21, 2015
R U L I N G
KITELEY J.: (Orally): This is a trial of two actions, Action Number CV-13-477962 and FS-13-388450. The trial was originally set for November 17, 2014. On November 10, 2014, at a trial management conference, Justice Stevenson vacated that date apparently because the parties were involved in a trial in India. Justice Stevenson set the date of March 16, 2015 for ten days for the trial.
On March 9, 2015, on another trial management conference, Justice Horkins struck the March 16th trial date. Ms. Singh said it was struck because the court did not have capacity, but the endorsement indicated that it was struck on consent. Justice Horkins set the date of October 19th and indicated that the trials would proceed regardless of the status of the litigations/court proceedings in India. In other words, it's been known for a very long time that this trial would proceed.
The law firm of Ken Wise & Associates has been on record since approximately May of 2014. Zev Wise is an articling student at his father's firm. Ms. Singh has worked closely with Zev Wise in a pursuit of the case and in preparation for the trial.
In June and July 2014, Justice Backhouse heard a motion on which Ken Wise was noted as being counsel for the motion, and he was also on the endorsement for the trial management conference in November 2014.
At the trial management conference on March 9th before Justice Horkins, Zev Wise is shown as present as an articling student and Ken Wise is not noted on the endorsement sheet.
A motion was scheduled before Justice Stewart on June 4th, 2015 but it was adjourned to a long motion date. Ken Wise is noted on the endorsement. It was heard by Justice Kelly ultimately and Ken Wise appeared.
I did a trial management conference on October 7, 2015. Ken Wise appeared, as did his client, Ms. Singh, and Zev Wise attended. It was assumed by them that Zev Wise would be doing the talking. I acquiesced in him doing so because there was so much to be done with the pending trial, but I specifically raised the issue that an articling student would not likely be permitted to participate in a trial.
The trial started yesterday, Tuesday, October 19th. Justice Backhouse and Justice Horkins had made orders that the evidence in examination-in-chief would be submitted by affidavit and then the witness would be presented for cross-examination. Justice Backhouse noted that evidence in examination-in-chief being presented by affidavit was on consent. As a result of these orders, Ms. Singh's affidavit dated August 24, 2015 was served, along with six volumes of documents, 94 tabs.
At the trial management conference on October 7th, I extended the time for Mr. Singh to file his affidavit of evidence in-chief. After receipt of that affidavit, Ms. Singh submitted a supplementary affidavit sworn October 16th attached to which were about ten more exhibits.
The first day of the trial, yesterday, was occupied on two issues. The first was to determine what the causes of action are that have been pleaded. Aside from the usual Family Law issues of spousal support claimed by Mr. Singh and equalization of net family property and the divorce, the civil claim on behalf of Ms. Singh refers to many torts as well as breach of contract.
The second issue which preoccupied the first day of trial was documents. Mr. Toor made objections to the admissibility of 30 of the documents. Mr. Ken Wise conceded that two were solicitor/client privileged that had not been waived and were not admissible, and I think he conceded that the four documents that were in Hindi that had not been translated were also not admissible. He made submissions on the balance of them which were largely an authentication issue. I have yet to make a ruling on admissibility of those documents.
Mr. Ken Wise made submissions as to the admissibility of many of the husband's documents.
At the end of yesterday, the expectation was that this morning I would rule on the admissibility of documents. I would hear submissions from Mr. Toor about admissibility of evidence contained in the August 24th affidavit. Both counsel would make opening statements and Ms. Singh would take the witness stand and be presented for cross-examination.
At the beginning of this morning, Ken Wise asked that he be permitted to withdraw as her counsel of record. He was visibly unwell. I did not ask him what medical condition he had. I asked if an adjournment of today and a resumption tomorrow would help and he said, no. He said his client very much wanted him to continue and he was humiliated to be making the request, but he simply could not carry on.
I released him as counsel of record because it was clear he was incapable of doing what needs to be done to the conclusion of what is estimated as a ten day trial. Ms. Singh then made oral submissions asking for leave pursuant to rule 4 that I make an order permitting Zev Wise to represent her. Mr. Toor is opposed.
I understand from Ms. Singh that Zev Wise graduated from law school with honours in April 2013. He completed his articles, along with his bar exams in February 2014. According to Ms. Singh, about a week before his summer call to the bar in 2014, Zev Wise was the subject of an anonymous complaint to the Law Society arising from something that occurred in 2009. I understand that there will be a good character hearing. Mr. Toor advised that his information was that the good character hearing had not yet been scheduled but Ms. Singh did not confirm that.
Ms. Singh points out that Zev Wise was allowed to appear in the Court of Appeal in September 2014. I have looked at that endorsement and it is a two page endorsement dismissing an appeal. The Appellant was appearing in person and "assisted by Zev Wise, student-at-law." The endorsement says nothing about the circumstances under which he was shown as an assistant and does not indicate whether, in fact, Zev Wise made any submissions.
At any rate, it was an appeal that was obviously very brief, not a ten day trial. I do not consider that to be helpful in making the decision that I am making today.
As I indicated earlier, Justice Horkins allowed Zev Wise to participate in a TMC, and I reluctantly did so on October 7th. Neither of those is of any import in the decision I am asked to make today. Rule 4 of the Family Law Rules and the decision of Loney v. Loney, 2004 , 22954, and the decision of Stone v. Stone (2000), 2000 20767 (ON SC), 5 R.F.L. (5th) 151 indicate that special circumstances are required in order for an order to be made as sought.
Ms. Singh has said that she has worked very closely with Zev Wise since she retained Ken Wise, that Zev Wise is very familiar with the documents and the evidence, and that she worked with him in assembling her affidavit and the six volumes of documents. She says that she could not represent herself. She says the delay of the trial would be an injustice and she points out that Zev Wise is bound by the Rules of Professional Conduct to the extent that they apply to articling students.
I accept that those are all reasons why the court might grant leave pursuant to rule 4, however, I am not persuaded to do so. Zev Wise has not been called to the bar in at least 14 or 15 months since he was eligible to do so. I was given no documentation to explain the nature of the allegations or the status of the complaint. He has been in limbo for months. I accept that he's bound by the Code of Ethics to the extent that it applies to articling students, but that assumes that there is an articling principal responsible for his actions.
In this case, I have made an order removing Ken Wise and, therefore, removing Ken Wise & Associates as solicitor as record. There is no articling principal behind Zev Wise in dealing with this particular trial. He remains under a cloud in dealing with his professional body. Ms. Singh is very articulate and well-educated. If she chooses, she may act for herself. If she does not, she will have to retain counsel. The complexity of this case arises from the issues raised in the civil action, not in the Family Law action. It would be unfair to Mr. Singh and his counsel and to this court to expect an articling student who is under a cloud with his professional body to be permitted to represent her.
The motion for leave pursuant to rule 4 is dismissed.
It's now just a few minutes after 1:00. We're going to return at 2:15 and at that time, I will hear from Ms. Singh and Mr. Toor about where we go from here.
Recess until 2:15.