COURT FILE NO.: 2675/09
DATE: 2019 09 11
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF THE SOLICITORS ACT AND IN THE MATTER OF
RE: Frances M. Viele, Solicitor
– and –
Gargan Investments Limited, Client(s)
BEFORE: LeMay J.
COUNSEL: R. Lepore, Counsel for the Solicitor
A. Hershtal and M. Roefe, Counsel for the Client
ENDORSEMENT
[1] The parties in this case are disputing a solicitor’s account. The dispute has a value of approximately $400,000.00. It has been ongoing for more than ten (10) years. I have been case managing the matter for more than four years. I have been attempting to move the parties to trial this October.
[2] Further case management conferences were held before me on August 7th, 2019 and September 10th, 2019. The original purpose of that case management conference was to ensure that the parties were ready for the pre-trial that I had scheduled in September of this year, and were also ready to proceed to trial in October.
[3] At the end of June, I received correspondence from the Solicitor’s counsel advising that he was objecting to one of the Expert reports that the Client had filed. This report was included as part of one of the Affidavits that I required in this case. The Solicitor is objecting to the Client using this report because the Solicitor asserts both that the Report was not delivered in accordance with the time limits in my case management directions and that the late delivery of this report was intentional and contumelious on the part of the Client’s counsel.
[4] For the reasons that follow, I have concluded that the late delivery of the report was contrary to my case management directions. However, I have also reluctantly concluded that the report should be admitted and considered by the judge hearing the assessment. My reasons for this conclusion follow.
Background Facts
a) The Relevant Procedural History
[5] The Solicitor, Frances Viele (“the Solicitor”) performed work for a series of Clients related to Gargan Investments Ltd. (“the Client”) in the 2000’s. The Solicitor-Client relationship ended in early 2009 with unpaid bills of approximately $300,000.00. The Client immediately started an assessment proceeding, and is also seeking the repayment of some fees already paid.
[6] The matter was being informally case-managed by Murray J. before his retirement from the Bench. In March of 2015, the matter came before me for a stay motion that I will describe shortly. Based on my review of the file, I determined that this required case management and requested that Daley R.S.J. appoint a case management judge. I was duly appointed the case management judge.
[7] This brings me to the expert report that is in dispute in this case, which is from a Mr. Harold Burt-Gerrans. It concerns issues relating to spoliation. In a motion before me that was argued over the course of more than a year between the fall of 2015 and the spring of 2017, the Client argued that I should permanently stay the Solicitor’s claim on the basis of spoliation. Specifically, the Client alleged that the Solicitor had improperly, and deliberately deleted computer files related to the assessment from her personal laptop.
[8] I dismissed this motion (see 2017 ONSC 6685) but noted that the Client’s claim was not without merit. As a result, the Client has been permitted to raise the issue again with the assessment judge as part of the assessment proceedings. Since that decision was released in late 2017, I have been attempting to move this matter towards trial.
[9] In my reasons, I set out some directions for the parties on the procedure to be followed in this matter. In terms of expert reports, I stated:
86 On the spoliation issues, it appears to me that no party will be seeking to rely on any other expert reports at the trial of this matter. If a party is planning on relying on an additional report in this case, they must advise me within thirty (30) days of the release of these reasons, and we can address whether that report will be permitted.
[10] Based on the materials filed on the spoliation motion in 2015, I had concluded that the parties were not intending to file any additional materials on the spoliation issues. My endorsement outlines that conclusion.
[11] In response to my case management directions, the Client provided particulars which were served in December of 2017. In those particulars, the Client stated:
Harold Burt Gerrans – H & A eDiscovery Inc.
Pursuant to the consent order of Justice Skarica made April 16, 2015 which appointed H & A eDiscoveries (Harold Burt Gerrans) to advise the parties and the court how and when all the files reported by Alan Lenczner as recovered from the solicitor’s notebook computer were deleted. Will provide evidence pertaining to the creation of the forensic image of the hard drive of Ms. Viele’s notebook computer, and will provide his opinion regarding the deletion of the files and the timing of the deletion of the files recovered and referenced in the report of Alan Lenzner; review of processes, working papers and computer records reviewed to derive the opinion provided; This will include the initial opinion, the document produced on cross examination, the documents provided in the client’s reply submissions, and the supporting documentation upon which those opinions and reports were made.
In the event the completeness of the disc / flash drives containing Ms. Viele’s files scanned on August 17 and 18, 2009 and produced by the client to the solicitor is challenged, a report to confirm what was produced was what was scanned.
[12] At this point, the Solicitor did not detail who her expert would be. Her then counsel simply advised that there would be an expert to respond to Computer Experts, and that one had not been retained yet.
[13] Between December of 2017 and December of 2018, the Solicitor changed counsel. Prior to the change the Solicitor had been represented by Mr. Bradley Teplitsky. She is currently represented by Mr. Lepore.
[14] I continued to attempt to move the action forward, although very little took place between December of 2017 and November of 2018. The reasons for these delays are, in part, set out in a previous endorsement (see 2018 ONSC 7793). They also relate to the Solicitor’s change of counsel.
[15] In November of 2018, I provided the parties with further direction regarding witnesses and expert reports. In terms of expert reports, the directions stated as follows:
10 The parties also agree that the experts will provide their expert reports, and any reply reports, in a sworn format. Those will become examinations-in-chief, and then cross-examination will be permitted.
[16] A further case conference was held on December 19th, 2018. At that time, I provided the following directions:
2 Any originating expert reports are to be served by February 28th, 2019. Any reply expert reports are to be served by April 15th, 2019. In terms of these reports, my previous direction that they be in sworn format and be the examination in chief continues to apply. If there are any issues relating to the timing of the delivery of these reports, it can be revisited at our next case conference.
[17] Materials were filed by the Client on February 28th, 2019. My assistant was provided with an electronic link to access those documents. However, I was not given any reasons why I would access this material, so I did not do so. The same link, although not a hard copy of the materials, was provided to Mr. Lepore, the new counsel for the Solicitor. A hard copy of these materials has never, as far as I understand, been provided to Mr. Lepore. I will return to a more complete discussion of those materials in the next section.
[18] In May of 2019, I was advised by Mr. Lepore that the Solicitor had not yet prepared her expert reports in relation to the spoliation issue. After discussion with Mr. Lepore, it became clear that he was hoping that this issue had been abandoned by the Client, and that it would not be necessary to prepare these reports.
[19] It was (and is) clear to me that the client has no intention of abandoning this issue. Indeed, it is clear that this issue will feature prominently at the assessment hearing. As a result, I directed that Mr. Lepore was to serve and file his expert reports.
[20] More specifically, I stated in my May 22nd, 2019 endorsement:
[4] Third, in that regard, I confirm that the responding expert reports from Mr. Lepore are to be provided as soon as possible. We will discuss the exact schedule when we meet on June 5th, 2019, but I will NOT provide an extension for these reports beyond June 29th, 2019.
[21] Further, my endorsement of June 5th, 2019 states as follows:
[4] Fourth, there are the expert reports. Mr. Lepore’s expert reports are due by June 28th, 2018 at the close of business. I expressed in Court that service of these reports at 5:01 pm would be too late. Any reply expert reports are due by July 12th, 2019.
[22] There were further appearances on August 7th, 2019 and September 10th, 2019. I will address those appearances in the next section, where I deal with the Affidavit and expert reports of Mr. Harold Burt-Gerrans.
[23] In terms of the Client’s counsel, I should note that it has been Mr. Roefe throughout. Mr. Hershtal is only counsel on this motion, and was only present because of the possibility that a claim (or a finding) of negligence could be made against Mr. Roefe. When I refer to the Client’s counsel in these reasons, I generally mean Mr. Roefe and not Mr. Hershtal.
b) Mr. Burt-Gerrans’ Reports
[24] On the spoliation motion heard between 2015-2017, I had a report from Mr. Burt-Gerrans dated May 15th, 2015. This is a ten page report that addresses the scope and approach to a forensic examination of the Solicitor’s computer as well as outlining the general results of that examination.
[25] I duly considered this report in the spoliation motion, but made no final findings with respect to it, as I had determined to leave the issue of spoliation (and any associated remedy) to the judge hearing the application.
[26] In the materials that were served on February 28th, 2019, Mr. Burt-Gerrans reports were (as I had directed) attached to an Affidavit that he had sworn. That Affidavit includes the following statements at paragraph 11:
- I advise this court that this affidavit was prepared by the client’s lawyer with a view to providing my reports to the court in an affidavit form solely to ensure that my reports were before this court, should the court not be prepared to accept my reports on its own.
[27] This same statement is included in Mr. Burt-Gerrans previous Affidavit, filed in 2015. Counsel for the Solicitor originally argued that this statement indicated that the Client’s counsel knew that Mr. Burt-Gerrans’ February 28th, 2019 report was being submitted contrary to my case management directions. In light of the fact that the same statement was made in the May 2015 Affidavit, Mr. Lepore properly abandoned this argument. However, as will be seen, Mr. Lepore pointed to other indications to suggest that the February 28th, 2019 report was still served contrary to my directions.
[28] Service of Mr. Burt-Gerrans’ Affidavit was accomplished by way of an e-mail to both Mr. Lepore and my judicial assistant. There was no index included in this e-mail. Instead, there was a link that would permit the downloading of Mr. Burt-Gerrans’ Affidavit and attachments.
[29] It should be noted that Mr. Burt-Gerrans’ Affidavit contained three reports. One was the original report dated May 15th, 2015. The other two, attached as Exhibits “D” and “E” were both dated February 28th, 2019. Only the report contained at Exhibit “D” was challenged by the Solicitor on this motion. I will refer to the challenged report (Exhibit “D”) as the February 28th, 2019 report in the rest of these reasons.
[30] On the same day, the Client’s counsel delivered other expert reports to the Solicitor’s counsel. These were also delivered by e-mail, but the covering correspondence was different.
[31] As I have noted above, the Solicitor did not complete her expert reports on the spoliation issue in accordance with the deadline that I had set. An extension was granted on the basis that Mr. Lepore was new to the file.
[32] The Solicitor served her expert report relating to the spoliation issue on June 27th, 2019. Approximately two hours after receiving this report, Ms. Amy Black, Mr. Roefe’s law clerk, wrote to Mr. Lepore and pointed out to him that the Solicitor’s expert report did not address Mr. Burt-Gerrans’ most recent report of February 28th, 2019.
[33] Mr. Lepore objected to the admissibility of Mr. Burt-Gerrans report by way of an e-mail. Mr. Roefe retained Mr. Hershtal as counsel in the event that allegations of negligence were made. The issue was originally discussed at our case conference on August 7th, 2019. At that time, I directed the parties that submissions were to be completed in writing on this issue by the end of that week, and I would make a decision. My intention had been to make a decision in August so that the parties could still prepare for an assessment to be heard this October.
[34] Sometime shortly afterwards, my judicial assistant (who was on vacation at the time) received an e-mail from Mr. Lepore advising that he might also need to retain counsel, and that he required a delay in the submissions. I did not receive this e-mail until sometime during the week of August 12th, 2019
[35] I provided the parties further directions through an e-mail from my judicial assistant. Those directions were as follows:
(a) At the appearance on September 10th, 2019, the parties are to be prepared to argue all motions that they may seek to bring before trial, other than those related directly to the content of experts reports that have yet to be served. Any materials for these motions are to be served by Tuesday, September 3rd, 2019. Any reply materials for these motions are due by Friday September 6th, 2019 at 4:00 p.m.
(b) The motion materials described in paragraph 1 are to be filed with the Court office in Milton. A hard copy is to be delivered to Judges' Reception in Brampton.
(c) The purpose behind the directions in paragraphs 1 and 2 are to address all of the outstanding matters that are required to be addressed before this matter is ready for trial. However, His Honour acknowledges that there may be issues related to the expert reports, depending on which reports are relied upon, that have to be addressed after the hearing on September 10th, 2019. However, His Honour notes that he will interpret relating to the expert reports in a very narrow manner. Specifically, if a party seeks to bring a motion after the expert issue is determined and that motion is not directly and entirely related to the expert reports then His Honour will deny leave to bring that motion.
(d) The timelimits in paragraphs 1 and 2 will not be extended under any circumstances.
(e) Mr. Lepore's materials on the issue of the admissibility of the expert report are due in accordance with the time limits set out in paragraph 1, being September 3rd, 2019. Mr. Roefe's materials in reply are due by September 6th, 2019. Service is to be effected as set out in paragraph 2.
(f) Any reply filed by Mr. Roefe to Mr. Lepore's materials on expert evidence must be no more than five (5) double spaced pages in length, including any Affidavit filed in response.
(g) The service requirements set out in paragraph 2 include delivery to Judges' Reception in Brampton. Further, any motions that are not entirely served within the time limits will not be heard.
(h) All clients are expected to attend the appearance in Guelph on September 10th, 2019 at 10:00 am.
(i) The parties are not to contact either my judicial assistant or the Trial Office in Guelph about any further matters until after the appearance on September 10th, 2019.
(j) The parties are expected to be prepared to completely address the expert evidence issue on September 10th, 2019. Counsel for Law Pro, if retained by either side, is expected to be present and an adjournment of this date will not be granted as a result of any availability problems for any counsel.
(k) Unfortunately, given the fact that His Honour has to make a decision after the hearing on September 10th, 2019, a pre-trial conference on that date is not feasible. Further scheduling issues will be addressed on September 10th, 2019. A further date, set at the convenience of the Court, will be scheduled for the pre-trial.
(l) For clarity, His Honour confirms that, at this point, the matter remains on the list for October of 2019.
[36] Based on those directions, the parties appeared before me on Tuesday of this week in Guelph. Arguments on the expert issues were strictly limited to 20 minutes each.
[37] In addition, one motion was brought by the Solicitor to have portions of Mr. Niejadlik’s Affidavit struck out. This motion was discussed in Court, and we have determined that it will be brought before the judge hearing the assessment.
Issues
[38] The issues raised by this motion are as follows:
(a) Were the preparation of Mr. Burt-Gerrans subsequent reports contrary to my case management directions?
(b) If the answer to the first question is yes, should the reports be admitted in any event?
[39] I will address each issue in turn.
Issue #1- Was the Supplementary Report of Mr. Burt-Gerrans Delivered Contrary to my Directions?
[40] Yes. I reach that conclusion for three reasons:
a. My directions in November of 2017 that I did not expect any further expert reports on spoliation issues, and that the parties needed to advise me within thirty (30) days as to whether there would be any additional expert reports.
b. The circumstances in which Mr. Burt-Gerrans’ report was delivered to the Solicitor’s counsel suggest that the Client’s counsel could have been aware that my directions might preclude the delivery of this report.
c. Finally, the original report was used on a motion to stay, which is a permanent remedy. It was not unreasonable to assume that it was the “best evidence” being offered by the Client on the spoliation issues.
[41] I will deal with each of these issues in turn.
a) My Directions
[42] My decision on the spoliation issue states that I understood that there would be no more expert reports on the spoliation issue unless those reports were identified to me within thirty (30) days of November 14th, 2017 (see paragraph 9, above) This direction was, in my mind, clear.
[43] As I have indicated, although the Solicitor indicated in her particulars that they would be seeking responding expert evidence on the spoliation issue, the Client did not indicate that there would be any additional expert evidence on the spoliation issue. There was no indication in any of the particulars that additional expert reports would be forthcoming.
[44] The Client argues that the passage from their December, 2017 particulars (see paragraph 11, above) supports the view that a further report was envisaged from Mr. Burt-Gerrans. I reject that submission for three reasons, as follows:
a. On my reading of them, there is nothing in the Client’s particulars that would suggest that a further expert report on the spoliation issues envisioned after the decision in the stay motion was rendered in November of 2017. In addition, nothing was said to me about the possibility of another report coming in any of our case conferences between November of 2017 and the delivery of this report in 2019.
b. Mr. Burt-Gerrans actually provided three expert reports in his February 28th, 2019 Affidavit. The third report deals with a comparison of scanned PDF’s between the USB key and the computer. The admissibility of this third report is not challenged. In argument, Mr. Hershtal acknowledged that this report was envisioned by the paragraph in the Client’s particulars. Even if one additional report from Mr. Burt-Gerrans was identified by the Client’s statement of particulars, it is difficult to see how two additional reports would have been envisioned by the Client’s statement of particulars. In other words, even if the Client can justify the delivery of a further report from Mr. Burt-Gerrans, the report on the scanned PDF’s is that report. The challenged report was clearly never identified by the Client’s particulars.
c. Finally, in argument I raised the concern that the Client must have known that an additional expert report from Mr. Burt-Gerrans was going to be forthcoming at the December 19th, 2018 case conference. I was advised that this was not correct and that, in fact, it was the endorsement I made on December 19th, 2018 that gave the Client the idea to obtain that additional report. If my endorsement of December 19th, 2018 gave the Client the idea to obtain this additional report from Mr. Burt-Gerrans, then the passage in the Client’s particulars in November of 2017 could not possibly have been signalling that there would be an additional report from Mr. Burt-Gerrans as no further originating report on the spoliation issues was in the mind of the Client at the time that they provided the particulars in November of 2017.
[45] This last point leads me to the Client’s other justification for having filed this additional expert report. Specifically, the Client argues that the December 19th, 2018 endorsement granted them permission to file new and additional spoliation reports.
[46] The problem with this argument is that my December 19th, 2018 endorsement must be read in the context of my previous endorsement where I indicated that I did not expect to see any further expert reports on spoliation, gave the parties a deadline of thirty days to advise me otherwise, and heard nothing specific from the Client’s counsel. The more logical interpretation of my December 19th, 2018 endorsement is to conclude that I was simply requiring the expert reports to be dealt with by Affidavit. In my view, this is the interpretation that should have been adopted by both parties.
[47] My interpretation of this Order is supported by the context in which I made my December 19th, 2018 endorsement. It must be remembered that all of the witnesses in this case are, to the extent possible, providing their testimony by way of affidavits. I had also directed that the experts provide Affidavits. This is not a normal requirement in a costs assessment or other litigation. The reason for the Order was to ensure that the litigation proceeded in an efficient manner and to ensure that the positions of the parties, and the evidence that they were relying on were clear to both sides well in advance of the hearing.
[48] As a result, my Order in December of 2018 required the expert’s reports to be included in Affidavits so the reports could be the subject of cross-examination. I was not intending for there to be additional reports on the spoliation issue other than those specifically identified by the Solicitor. I find it difficult to accept that anyone else had a different interpretation.
[49] However, I acknowledge that there is some ambiguity in my Orders. As a result, it is not clear to me that the Client’s counsel deliberately breached my Order. Instead, it is open to conclude that he simply interpreted it in the way that was most advantageous to his Client.
[50] As a final matter, I should address the Client’s argument that Mr. Burt-Gerrans February 28th, 2019 report is not a “new” report because it contains many of the same conclusions as the previous report. I reject this argument for two reasons. First, there appear to be at least some substantive differences between the two reports. I do not intend to catalogue those differences or draw any conclusions from them as that is a matter for the judge hearing the application to determine. Second, the original report was approximately ten pages, while the February 28th, 2019 report was in excess of fifty pages (with appendices). They are different reports.
b) The Context of Delivery
[51] In terms of the delivery of the report, the Solicitor argues two points. First, the entire report was not delivered in accordance with my deadline and that the Solicitor has still not received the complete report. Second, the way that Mr. Burt-Gerrans’ Affidavit was delivered suggests that the Client’s counsel knew that this report was being delivered contrary to my directions.
[52] I do not agree with the Solicitor’s counsel that the decision to have Mr. Burt-Gerrans’ Affidavit in an e-mail was a deliberate attempt to obscure its contents from the Solicitor and from the Court. In that regard, I note that the Client’s counsel has delivered a significant number of very long documents in this case, and that there has been an unfortunate tendency to communicate by e-mail and to copy the Court on those communications. I have attempted to stop those communications on numerous occasions, but they are not out of the ordinary in this case.
[53] However, the manner in which this Affidavit was delivered had the effect of making it more difficult to see that there were additional reports included in the Affidavit. A properly bound and indexed hard copy of the Affidavit (or at least an e-mail with a proper index of what was included) should have been provided to the Solicitor’s counsel.
[54] On that point, counsel for the Client argued that there was no explanation as to why the Solicitor had not reviewed the complete Affidavit of Mr. Burt-Gerrans prior to June of this year. I disagree with counsel’s submissions on this point. Given the very significant amount of paper in this case, and given the interpretation of my Order that both counsel for the Solicitor and I were working with, it was not an unreasonable assumption that Mr. Burt-Gerrans’ Affidavit would simply have repeated what was already in his May 2015 report. While counsel for the Solicitor should have reviewed the document, it was understandable as to why he did not do so.
[55] This brings me to the difference in the two expert affidavits that were served on February 28th, 2019. The other report served the same day appears to have more clearly identified what was being advanced as opinions. This supports my concern that, in this case, the manner in which the reports were served certainly had the effect of obscuring the contents of Mr. Burt-Gerrans’ report.
c) The Permanent Stay Issue
[56] The original report of Mr. Burt-Gerrans was used by the Client on a motion for a permanent stay. Given that it was open to me to dismiss the Client’s motion for a permanent stay rather than letting the issue go to trial, it would be reasonable to assume that the Client had put their “best foot forward”. It is also reasonable to assume that everyone involved in the litigation would know that this was the Client’s complete report on the spoliation issues.
[57] This point is less important than the previous two points. However, it still adds context to the issue. Specifically, it is a point that is helpful in determining what was (or at least should have been) in the minds of the parties and their counsel when preparing Affidavits in February of 2019.
d) Was the Breach of My Order Intentional and Contumelious?
[58] I do not accept that the Client’s counsel was engaged in good faith efforts to comply with my Orders, at least as it applies to the delivery of Mr. Burt-Gerrans’ Affidavit. As I have noted above, I was clear in terms of what my orders, when read together, meant. I am also of the view that the parties should have been clear on what those Orders meant.
[59] However, there is sufficient ambiguity in the Orders that I cannot make a finding that the breach of these Orders by Mr. Roefe was intentional and contumelious. In particular, the November 1st, 2018 and December 19th, 2018 Orders are open to a different interpretation, as I have set out at paragraph 49.
[60] In addition, both parties acknowledged that a conclusion that my orders were intentionally and contumeliously breached could very well be tantamount to a finding of contempt on the part of Mr. Roefe. Not only does such a finding need to be based on Orders that are unambiguous, it would engage principles of criminal law, which were not engaged here.
[61] In light of these comments, I am not prepared to conclude that my Orders were intentionally and contumeliously breached. However, I have concluded that these Orders were breached by the Client.
Issue #2- Should The Report Be Admitted in Any Event?
[62] Counsel for the Client argues that the report should be admitted on the basis that he was acting in good faith at all times. In addition, counsel for the Client argues that relevant and probative evidence should be admitted, it is rare that the late delivery of a report will cause prejudice to the opposing party in a case without a jury, and if an adjournment can be granted without undue inconvenience.
[63] Counsel for the Solicitor argues that the report should not be admitted in part because of the deliberate conduct of counsel for the Client. As I have noted above, I have substantial concerns about the manner in which the Client’s lawyer interpreted my Orders.
[64] The Solicitor offers other arguments in support of her position that this report should be excluded, as follows:
(a) The Client delivered new evidence in replying to the original stay motion in 2017.
(b) The Client’s whole approach to this litigation has been designed to complicate the proceeding and add to its cost.
(c) The Client has failed to deliver a complete copy of Mr. Burt-Gerrans’ report to the Solicitor’s client either in accordance with the deadline, or at any time thereafter.
[65] I start with the case-law that the Client has provided. In particular, the Client relies on the decision of Mullins J. in Shaw-Vanderholst v. Azzopardi (2016 ONSC 6895). In that decision, Mullins J. stated (at paragraphs 31 to 33):
[31] Relevant and probative evidence should be admitted.
[A]ny time a Court excludes relevant evidence the Court's ability to reach a just verdict is compromised. Relevant evidence should not be excluded on technical grounds, such as lack of timely delivery of a report, unless the Court is satisfied that the prejudice to justice involved in receiving the evidence exceeds the prejudice to justice involved in excluding it: Hunter v. Ellenberger (1998), 25 C.P.C. (2d) 14 (Ont. S.C. (H.C.)), at para. 7.
[32] Moreover, “[t]he exclusion of apparently relevant and probative evidence is not a remedy for a possible breach of the Rules that a court should hasten to accept, since the exclusion of such evidence could imperil the just determination of a case, contrary to a foundational principle of the Rules”: Lee (Litigation guardian of) v. Toronto District School Board, 2012 ONSC 3266, 218 A.C.W.S. (3d) 102, at para. 22.
[33] Rule 53.08 further states that “leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.” In Dybongco-Rimando Estate v. Lee (1999), 43 C.P.C. (4th) 195 (Ont. S.C.), at para. 18, Quinn J. described prejudice as that “for which costs are not an adequate answer; undue delay is “nothing more than a delay which, in the circumstances of the case, is unreasonable.” The onus is on the responding party to show that prejudice will be caused or undue delay in the conduct of the trial will arise: Winters v. Loblaws Supermarket Ltd., 2003 CanLII 11069 (ON SC), at para. 5. It is rare that late delivery of a report will cause prejudice to the opposing party in a case without a jury and if an adjournment can be granted without undue inconvenience: Hunter v. Ellenberger (1998), 25 C.P.C. (2d) 14 (Ont. S.C. (H.C.)), at para. 6.
[66] Particular attention should be paid to the fact that Rule 53.08 provides an expansive basis for the Court to grant leave to deliver a late expert report. The purpose behind this Rule is to ensure that matters are heard and decided on their merits.
[67] Normally, I would simply adopt the reasoning of Mullins J. and admit the report, as her reasons provide an accurate and thorough summary of the law in this area. However, given the facts of this case, the reasons outlined in Shaw, supra are not sufficient to justify admitting Mr. Burt-Gerrans’ report.
[68] I reach that conclusion for two reasons. First, there is undue delay in this case and counsel for the Solicitor is correct in his assertion that much (but not all) of this delay has been caused by the Client litigating around the “periphery” of the issues in this case.
[69] In that regard, I have particular consideration for the reasons that I released on May 11th, 2018. In those reasons, the Client argued that the judge hearing the assessment would need to hear evidence relating to allegations about misconduct on both the part of the Solicitor, Ms. Viele, and her former lawyer, Mr. Brad Teplitsky. In support of this assertion, the Client relied on Mr. Teplitsky’s disciplinary history as a member of the Tennessee bar. I outlined my concerns with the Client’s decision to raise this issue in my May 11th, 2018 decision (2018 ONSC 7793). Those concerns remain, and when coupled with the other issues in this case, lead me to the conclusion that the Client has been seeking to delay the hearing of this matter.
[70] A second example of my concerns with the conduct of the Client’s counsel is set out in my reasons on a particulars motion decided earlier this year (see 2019 ONSC 2112). In the materials for that motion, the Client’s counsel provided me with a chart purporting to outline the Solicitor’s position on various undertakings. Having reviewed all of the material in the motion record, I determined that the Client’s summary was incomplete, and made the following observations (at paragraphs 26 and 27):
As can be seen, the Solicitor’s argument is actually twofold. First, that the Solicitor has not referenced any advice in her particulars or her response to the Client’s particulars. Second, the advice (if any was given) is in the knowledge of the client. As will be seen, the second argument is weaker than the first argument. The first argument was not included by the Client in its summary of the Solicitor’s position.
As a result, the Client’s summary of the Solicitor’s response is unhelpful to the Court in determining these issues. Indeed, as will be seen, if I only relied on the Client’s position on these points, I would have come to a different conclusion than the one I actually reached.
[71] This brings me to the Solicitor’s argument that the Client’s counsel has previously attempted to include extra expert reports in the materials before me. Specifically, on the original stay motion, the Client’s counsel advised me that he was ill the day that the Solicitor was doing his argument and wished permission to file written reply after the hearing.
[72] The Solicitor argues that, in the written reply materials that were filed on the original stay motion, the Client included additional materials that had not previously been part of the motion record. The Client argues that these documents were simply a synthesis of the evidence, rather than being new evidence.
[73] It is difficult to determine who is correct on this point, and I do not intend to do so. I would simply observe, as I have on a number of occasions in the past, that these reply submissions were both too long and not appropriate reply.
[74] Given these concerns with how the Client has been proceeding in this case, granting the Client the right to file these reports and simply adjourning the matter would be allowing the Client to control the process and, at a minimum, evade the application of my Orders. This is not conduct that should be encouraged.
[75] This brings me to the second reason why the principles in Shaw, supra are not sufficient on their own to justify the admission of Mr. Burt-Gerrans’ supplementary report. This case is being case-managed. An important part of case management is that the Judge assigned to manage the case must be able to control the process and provide directions that are adhered to by the parties.
[76] One of the key directions that I had provided in this case is that this matter was to be heard during the trial sittings this October. After ten and a half years of litigation, this did not seem to be an unreasonable requirement to me. The parties should be ready to proceed to an assessment at this point. Admitting this report and causing an adjournment would be allowing the Client to ignore the spirit (if not the letter) of my Orders and would significantly undermine my authority as the case management judge.
[77] However, I must also consider the conduct of the Solicitor and her counsel. I start with counsel for the Client’s observation that the Solicitor should have known that this report was part of the materials in February of 2019, and should have objected to it then.
[78] I reject this assertion for two reasons:
(a) As I have noted above, I have issues with the manner in which the Client’s counsel served this report on the Solicitor’s counsel, both with its completeness and with the differences in the manner that the various expert reports were served.
(b) The Solicitor is correct that the Client’s counsel had an obligation to ask for leave to serve this report late. It is no defence to this obligation to say, in essence, that counsel for the other side didn’t object in a timely way and has now lost his right to do so. Leave was necessary from the Court and not just from Mr. Lepore. Mr. Roefe had a positive obligation to seek leave from me, and did not do so. As Mr. Hershtal acknowledged in his submissions, Mr. Roefe should have done better on this issue.
[79] However, there is another element of the Solicitor’s conduct that must be kept in mind. Expert reports from both sides were due by the end of February of 2019. The Solicitor did not serve her report on the spoliation issues until the end of June.
[80] Admittedly, the Solicitor had leave to serve her report late and was clear both about why the report was late and why leave was being sought. In the circumstances, a request for an extension was reasonable and was granted.
[81] However, having granted the Solicitor until the end of June, 2019 to serve and file her report on the spoliation issues, I cannot justify refusing to extend the same indulgence to the Client, regardless of the conduct of the Client. Providing the parties with the same time limits accords with the principles of fundamental justice.
[82] As a result, the report of Mr. Burt-Gerrans may, subject to the rulings of the judge hearing the assessment, be relied upon by the Client. The timelines are set out in the conclusion, and there will be no extensions of these timelines, even on consent, without my leave.
Conclusion and Costs
[83] For the foregoing reasons, I order as follows:
(a) The report of Mr. Burt-Gerrans dated February 28th, 2019 may be relied upon in the hearing of this assessment.
(b) The Solicitor’s expert report is due within ninety (90) calendar days of today’s date.
(c) The Client’s responding report is due within thirty (30) calendar days after the Solicitor’s report is served.
(d) Any party who wishes to bring a motion relating to the expert reports will serve and file their motion in Milton (with a hard copy to Judge’s Reception in Brampton) within seven (7) calendar days after the responding report is served.
(e) I will then determine whether I am prepared to permit the motion described in paragraph d to be heard, and provide the parties further directions in that regard. On that point, I indicated to the parties in Court on Tuesday that if this motion dealt with anything other than issues directly related to the expert reports, leave to hear it would be denied.
(f) A motion to strike portions of Mr. Niejadlik’s Affidavit was brought by Mr. Lepore. After discussion with the parties, this motion will proceed before the judge hearing the assessment. Mr. Lepore is to file, by September 17th, 2019, a blacklined copy of Mr. Niejadlik’s Affidavit, outlining which paragraphs (and portions thereof) he is seeking to have struck.
(g) No other motions on this assessment are permitted.
(h) The timelines set out in these Orders may not be extended, even on consent, without my leave.
(i) The matter is removed from the trial list for October, and placed on the list for the March sittings.
(j) A trial management conference will be held in January. To that end, the parties are to advise my judicial assistant as to their availability for a conference of one hour at 9:00 on any day the week of January 13th, 2020 except the Monday. This case conference is in-person and in-court, and will be held wherever I am sitting that day.
(k) A full-day pre-trial will be held in Milton on February 7th, 2020. The clients are required to attend, and the filings that I required for the pre-trial that was originally to be held on September 10th, 2019 are required for this pre-trial.
(l) The parties are encouraged to agree on the issue of costs. If the parties cannot agree, then each side may make submissions of no more than two (2) single spaced pages of at least twelve point font with proper margins. This limitation is exclusive of bills of costs, offers to settle and case-law. These submissions are due within seven (7) calendar days of the release of these reasons.
(m) The parties may then file reply submissions of no more than one (1) single space page of at least twelve point font with proper margins. These submissions are due within seven (7) calendar days of the receipt of the first submissions.
(n) A paper copy of the submissions are to be filed with the Court Office in Milton. A second paper copy is to be delivered to Judge’s reception in Brampton. Submissions are not to be e-mailed to my judicial assistant.
(o) There are to be no extensions of time for the completion of the costs submissions, even on consent, without my leave. If no submissions are received in accordance with these deadlines, then there will be no costs for this portion of the proceeding.
LeMay J.
DATE: September 11, 2019
COURT FILE NO.: 2675/09
DATE: 2019 09 11
SUPERIOR COURT OF JUSTICE - ONTARIO
IN THE MATTER OF THE SOLICITORS ACT AND IN THE MATTER OF
RE: Frances M. Viele, Solicitor
– and –
Gargan Investments Limited, Client(s)
COUNSEL: R. Lepore, Counsel for the Solicitor
M. Roefe, Counsel for the Client
ENDORSEMENT
LEMAY J
DATE: September 11, 2019