Court File and Parties

COURT FILE NO.: CV-17-581322-00CP DATE: 20190723 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: George Azar, Plaintiff – and – Strada Crush Limited, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Henry Juroviesky, as existing class counsel Darryl Singer, as proposed class counsel Rahool Agarwal, for the Defendant

HEARD: July 23, 2019

Class Counsel and Representative Plaintiff

[1] Having had a falling out with Henry Juroviesky, the lawyer that successfully took this matter through certification and who is appointed class counsel, the representative Plaintiff moves to appoint Darryl Singer of Diamond and Diamond as new class counsel. For his part, Mr. Juroviesky seeks to disqualify the representative Plaintiff and wants time to recruit a new representative Plaintiff for the class.

[2] On August 17, 2018, I issued my judgment certifying this matter under the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”) and appointing Mr. Juroviesky class counsel. The Plaintiff now seeks to appoint Mr. Singer as class counsel in place of Mr. Juroviesky. Although he concedes that Mr. Juroviesky has been successful to date and that no costs have been awarded against him (quite the contrary), he is concerned about the prospect of a future adverse costs order. Apparently, he has no indemnity agreement with Mr. Juroviesky or with any third-party funder.

[3] Mr. Juroviesky has responded with a motion of his own indicating that the Plaintiff is not competent to conduct this litigation and that he requires a litigation guardian. This, of course, is rather surprising given that less than a year ago Mr. Juroviesky represented the Plaintiff in the certification motion and submitted that the Plaintiff is an appropriate representative Plaintiff for the class and that he understands the issues and can properly instruct counsel.

[4] I also note that the evidence in support of this assertion does not come from a medical practitioner or a social worker or any other person in a relevant profession. It comes from another lawyer who swears to his willingness to act as litigation guardian. In the course of expressing his interest in playing that role, the lawyer/affiant also indicates that he has reviewed the Plaintiff’s file in an unrelated WSIB matter, and that he sees that the Plaintiff complains of certain mental health symptoms. None of that is proper evidence in support of this kind of relief.

[5] Indeed, I would be very hesitant to appoint a lawyer/colleague of class counsel as litigation guardian for a representative plaintiff in a class action. Mr. Juroviesky indicated to me at the hearing that the lawyer who he proposes will act as litigation guardian has been his co-counsel in past class actions. That would put the entire action in the control of lawyers without any real client to answer to at all.

[6] Mr. Juroviesky takes the position that the Plaintiff has been slow in getting back to him with instructions, and the diagnosis of the Plaintiff found in the WSIB file helps explain this tardiness. He also states that the Plaintiff is lacking in mathematical skills, which is a further sign of his lack of mental competence.

[7] Frankly, this attack on the Plaintiff appears to be a strategic position, although not a very well thought out strategy. As Mr. Singer points out, if the Plaintiff were really lacking in capacity to instruct counsel then Mr. Juroviesky has some issues to deal with flowing from his own time dealing with and taking instructions from the Plaintiff. In any case, if weakness in math and a tendency to procrastinate were signs of a lack of capacity, half the bar and bench, including myself, might have to submit to guardianship. I say that, of course, with the greatest of respect.

[8] The Plaintiff appears to me to be perfectly competent and is not in need of a litigation guardian.

[9] The real question here is, what is in the best interests of the class? From the Plaintiff’s affidavit, I know that he was first introduced to Mr. Juroviesky by Robert Nunes, a paralegal and former business partner of Mr. Juroviesky’s. It would seem that Mr. Juroviesky and Mr. Nunes had a parting of the ways sometime during the past year, and that Mr. Nunes hired Mr. Singer to represent him in suing Mr. Juroviesky. At the same time, Mr. Nunes introduced the Plaintiff to Mr. Singer and, presumably, convinced him to hire Mr. Singer and to fire Mr. Juroviesky.

[10] Mr. Nunes accompanied the Plaintiff to the hearing before me and sat together with him in court. But I do not have to guess at the friendly relations between them. A full five paragraphs of the Plaintiff’s affidavit filed in support of the motion to change class counsel are devoted to a defense of Mr. Nunes in his business dispute with Mr. Juroviesky. He sets out the financial dispute between them and goes out of his way to say – gratuitously, in the context of the present motion – that Mr. Nunes “was unjustifiably treated [by] Mr. Juroviesky” and advocates for Mr. Juroviesky to pay Mr. Nunes more money.

[11] It seems to me that in seeking to terminate the retainer of class counsel who successfully took a difficult case through the certification stage, and in seeking instead to appoint the lawyer representing his friend who is in a business dispute with class counsel, the Plaintiff has not put forward the best interest of the class he represents. Rather, he has put his own interest first in choosing Mr. Nunes’ personal lawyer over the lawyer who has a proven track record in this very case. If this had occurred at or just prior to certification, I would have had to conclude that the criteria stipulated in ss. 5(1)(e)(i) (fairly and adequately represent the class) and 5(1)(e)(ii) (no conflict of interest with the class) of the CPA have not been met.

[12] Since those criteria for a suitable representative Plaintiff would not have been met at the time of certification, they likewise are not met now. The class deserves to have a representative Plaintiff devoting his time and attention to the litigation and instructing class counsel in respect thereto. It should not have a Plaintiff that hires and fires class counsel based on matters other than class counsel’s conduct of the class action litigation. Whether Mr. Juroviesky owes Mr. Nunes money or Mr. Nunes owes Mr. Juroviesky money is a distraction which should not play into the representative Plaintiff’s approach to this case. The rest of the class care about this case, not the Nunes v. Juroviesky case.

[13] Mr. Juroviesky says that he needs 60 days to find a new representative Plaintiff from among the class members. He would also like the Defendant to disclose to him its list of employees and former employees that are in the class.

[14] I am not prepared to make any order against the Defendant. That would require a separate motion brought on notice and an opportunity for Defendant’s counsel to respond. Defendant’s counsel was not served with any disclosure motion at this point, and although he was in attendance in court today it was on a watching brief just to ensure that nothing transpired that prejudiced his client. He took no substantive position on the motion before me.

[15] That said, the Plaintiff himself may well have a list of his work colleagues (or former colleagues) who are members of the class. He should provide Mr. Juroviesky with the names and contact information that he has, since he is in any case still on record as representative Plaintiff and it is part of his role to help counsel advance the case.

[16] In the event that Mr. Juroviesky does not move to replace the Plaintiff with a new representative Plaintiff within 60 days of today, the Defendant shall be at liberty to move to de-certify the case. Until then, the Plaintiff shall remain representative Plaintiff, but shall only take those steps needed by Mr. Juroviesky to change Plaintiffs or otherwise in coordination with Mr. Juroviesky to advance the case on behalf of the class.

[17] I will take this opportunity to observe that one legitimate complaint by the Plaintiff about his representation by Mr. Juroviesky is that the existing retainer agreement does not appear to adequately address the Plaintiff’s potential exposure to an adverse cost award. The agreement states that the Plaintiff is not responsible for the payment of costs, but it does not say who is.

[18] I would strongly encourage Mr. Juroviesky to address this frailty in his retainer agreement going forward. Some provision must be made to indemnify the Plaintiff (or any future representative Plaintiff in this matter) for an adverse costs award, although I leave it to Mr. Juroviesky and any potential client to work out what form that indemnity might take.

[19] The Plaintiff’s motion to appoint Mr. Singer as class counsel is dismissed. Mr. Juroviesky’s motion to appoint a litigation guardian for the Plaintiff is likewise dismissed.

[20] There will be no costs ordered for or against either party to this motion and cross-motion.

Morgan J. Date: July 23, 2019