Court File and Parties
CITATION: Koon v. Lawyers Professional Indemnity Company, 2016 ONSC 7310 COURT FILE NO.: CV-11-0005113100-OT DATE: 20161128
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anthea Koon, Applicant AND: Lawyers Professional Indemnity Company, Respondent
BEFORE: Justice Matheson
COUNSEL: Applicant, self-represented Mark J. Freiman and Jameel Madhany, for the Respondent
HEARD: November 22, 2016
Endorsement
[1] In this motion, the applicant lawyer seeks relief in respect of my decision released May 18, 2016 dismissing her application, as well as a related costs decision released September 26, 2016. The applicant relies on both inherent jurisdiction of the Court to reopen a matter and on Rule 59.06 of the Rules of Civil Procedure.
[2] In the underlying application, the applicant lawyer sought to set aside the arbitral award of the Hon. Dennis Lane dated March 18, 2011. Very briefly, the applicant raised concerns regarding the arbitration hearing process and submitted, unsuccessfully, that there was a breach of s. 19 of the Arbitration Act, 1991, S.O. 1991, c. 17. The background to the application is summarized in my reasons for decision, at 2016 ONSC 932, and is not repeated in this endorsement. The applicant was represented by counsel on the application.
[3] Cost submissions were made in writing, including lengthy written submissions by the applicant who was then self-represented. I ordered that the applicant pay costs fixed at $10,000.
[4] In the course of the applicant’s cost submissions, she raised a factual issue based on information obtained after the disposition of her application. In my costs endorsement, I expressly stated that I was not deciding a Rule 59.06 motion regarding that evidence as part of my costs decision and as far as I was aware, no such motion had been brought. I was then informed by the applicant that she had taken steps to schedule a motion but, through administrative inadvertence, that motion had not been scheduled nor had it been drawn to my attention. I therefore facilitated the scheduling of the motion, which has now been heard and is the subject of this endorsement. I also permitted supplementary submissions on costs in view of that motion.
[5] The applicant’s motion materials are not limited to a Rule 59.06 motion. They invite a full reconsideration of my decision on her application based upon additional evidence, law and argument. The supporting evidence is mainly focused on the underlying estates matter that gave rise to dispute with the respondent in the first place, and evidence regarding the course of events that were the subject of the application itself. It significantly overlaps with the evidence on the application. The applicant also submits that a number of issues raised by her on the application were not addressed by my decision and seeks to raise them again now. The applicant also raises issues that were not raised on the application at all.
[6] I will deal first with the motion to the extent that it is brought under Rule 59.06, and then address the other matters including my inherent jurisdiction, as needed.
Rule 59.06 motion
[7] Rule 59.06(1) provides that an order containing an error arising from an accidental slip or omission or an order that requires an amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.
[8] The applicant appears to be proceeding on the basis that some of her arguments made on the application were not expressly addressed in my reasons for decision and ought to have been. Her submissions are more in the nature of arguments for an appeal. It is not a matter for Rule 59.06(1).
[9] Rule 59.06(2) provides that a party may seek to have an order set aside or varied on the ground of fraud, among other grounds. The applicant submits that there was fraud, focusing on two matters: (1) the manner in which the question of whether Mr. Galligan was paid was addressed in front of Mr. Lane; and, (2) the manner in which a letter dated August 26, 2009 was addressed by Mr. Lane.
[10] These fraud claims relate to the conduct of arbitration hearing rather than the conduct of the application before me. As such, they are not properly the subject matter of this subrule, which is intended to address fraud perpetrated in the way the order was obtained before me: Royal Bank of Canada v. Futurecom Inc., 2010 ONCA 63, at para. 20. I will, however, address them.
[11] The subject of whether or not Mr. Galligan was paid was a small part of the factual context for my decision on the application. It was referenced in one paragraph of my reasons for decision, as follows:
[42] The applicant submitted that LawPRO wrongly told Mr. Lane that it had paid Mr. Galligan. The evidence in this regard is unclear. Mr. Galligan said, when he withdrew, that he did not intend to charge. What happened thereafter does not form part of the record. LawPRO may have concluded that it was appropriate to pay him. Internal LawPRO counsel swore an affidavit in this proceeding and could have been cross-examined on this point. Ultimately, it was for the applicant to establish the requisite facts. On the record before me, I am not prepared to conclude that counsel made a false statement in this regard. [Emphasis added.]
[12] As the above paragraph shows, I said that the evidence on this point was unclear. Apparently, that comment motivated the applicant to make inquiries of the office of Mr. Galligan. As a result of those inquiries, the applicant obtained confirmation that Mr. Galligan had not been paid by LawPRO. This is consistent with the evidence that he was not going to render an account. Prior to the hearing of the application, the applicant had asked for his invoice and had not been provided with one.
[13] The suggested importance of this point has dramatically escalated since my reasons for decision were released. In her oral submissions made on this motion, the applicant now strongly suggests that the purported submission to Mr. Lane compromised her right to a fair hearing. She submits that the respondent’s counsel said or implied that Mr. Lane would not be paid if the adjournment was granted. The implication is that Mr. Lane was motivated by his own pecuniary interests. This serious allegation was not made at the hearing of the application.
[14] The evidence before me does not establish a fraud. I accept that the submission referred to in paragraph 42 of my reasons was mentioned in the applicant’s affidavit and her lawyer’s affidavit on the application, although it does not go so far as now suggested by the applicant. The respondent’s arbitration counsel also swore an affidavit that recounted his submissions to Mr. Lane in some detail and appended his handwritten notes and preparatory notes for his submissions, none of which makes any mention of this subject matter. Given the seriousness of the allegation that counsel made a false statement for an improper purpose, this evidence should have been the subject of cross-examination before such an allegation was made. It was not. And Mr. Lane’s ruling makes no mention of this subject matter. It therefore remains the case, on the expanded evidence now before me, that the applicant has not established that counsel made a false statement. No fraud has been demonstrated.
[15] The second fraud allegation relates to a letter dated August 26, 2009 that the respondent’s arbitration counsel requested be added into the Arbitration Record at the arbitration hearing. This letter was known to the applicant. It was a letter that she had previously received and was aware of. The somewhat elaborate issues now raised about this letter were not the focus of attention in the argument of the application. Nor does the new characterization of the request to add the letter to the Record come close to a fraud.
[16] I therefore conclude that the request for relief under Rule 59.06 is not well-founded.
Inherent jurisdiction
[17] The applicant also urges me to exercise my inherent jurisdiction to reopen the hearing of the application and permit her to supplement the evidentiary record on the application and re-engage in the same and new arguments regarding the merits of her application. In the course of her submissions, the applicant raises numerous old issues and puts forward affidavit evidence which is largely focused on the merits of the application and the underlying estate dispute that gave rise to the claim to LawPRO in the first place. The applicant also raises new issues, suggesting, for example, that she was treated in a certain way because she is a racialist lawyer. This was not raised in the argument of the application.
[18] Having considered all of the material and related law, and accepting that I have jurisdiction to reopen the matter, I am not prepared to do so. The applicant has not raised an issue that I conclude strikes at the fairness of the application proceedings. The many issues and additional evidence appear to be an attempt to reargue the merits of the application without fulfilling the prerequisites of the fresh evidence rule.
[19] There is one further point that I wish to mention. The applicant complains that the respondent breached Rule 1.09 and seeks relief in that regard. This issue arises as follows. In my reasons for decision on the application, I set a schedule for written costs submissions. The respondent was ordered to make its submissions first, and did so. The applicant responded with written costs submissions, but exceeded my order by including evidence and submissions beyond the subject of costs. Serious allegations were made. As a result of those allegations, respondent’s counsel delivered reply submissions. In doing so, counsel did not first obtain the applicant’s consent or the court’s permission.
[20] Obviously Rule 1.09 should be followed. Respondent’s counsel ought to have obtained consent or permission. However, I do not find that this lapse created an unfairness. I made no decision on the Rule 59.06 issue as a result of those reply submissions, and I am confident that counsel will have Rule 1.09 firmly in mind in the future. No additional relief is needed.
Order
[21] I therefore dismiss the plaintiff’s motion.
[22] As the successful party, the respondent seeks partial indemnity costs. The amount requested is approximately $6,300, which is slightly less than the costs claim of the applicant. Taking all relevant factors into account in the exercise of my discretion, I order that the applicant pay the respondent costs of her motion, fixed at $4,000. The costs order made by my September 26, 2016 endorsement is unchanged.
Justice W. Matheson
Date: November 28, 2016