Court File and Parties
COURT FILE NO.: CV-17-581322-00CP DATE: 2020-01-27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GEORGE AZAR, Plaintiff – and – STRADA CRUSH LIMITED, Defendant
BEFORE: Justice E.M. Morgan
COUNSEL: Henry Juroviesky, for the Plaintiff Rahool Agarwal and Vlad Calina, for the Defendant
HEARD: January 24, 2020
REPRESENTATIVE PLAINTIFF AND DECERTIFICATION MOTION
1Can a class member who was removed as representative Plaintiff because he put his own interest ahead of that of the class, be re-appointed several months later if no replacement can be found?
I. History of proceedings
2This case involves a claim for unpaid wages by a group of employees who allege that they were misclassified by their employer, and that the employer thereby deprived them of overtime and holiday pay. The class is composed of 154 individuals who were past and present employees of the Defendant from year 2000 to the present
3On August 17, 2018, I certified the action under the Class Proceedings Act, 1992, SO 1992 c 6 (“CPA”): Azar v Strada Crush Limited, 2018 ONSC 4763. Just under a year later, the Plaintiff, George Azar, moved to fire Henry Juroviesky as class counsel and to appoint Darryl Singer of Diamond and Diamond as class counsel in his place.
4On July 23, 2019, I issued a judgment in which I dismissed the request to change class counsel: Azar v Strada Crush Limited, 2019 ONSC 4436. At the urging of Mr. Juroviesky, I found that Mr. Azar had acted out of a personal interest rather than in the interest of the class, and that he was not a suitable representative Plaintiff for this class action. I gave Mr. Juroviesky 60 days to find a new representative Plaintiff to take Mr. Azar’s place.
5Mr. Juroviesky has apparently been unable to find a new representative Plaintiff willing to go on record in this action. He has, however, had a rapprochement with Mr. Azar, who now moves to have himself re-appointed as representative Plaintiff.
6Counsel for the Defendant take the position that 7 months ago Mr. Azar was found not to be a suitable representative Plaintiff, and that nothing has changed to make him any more suitable for this role today. In fact, it is the Defendant’s position that Mr. Azar in his affidavit and cross-examination has exhibited the same self-interested tendencies in bringing the present motion as he exhibited last July when he sought to bring on new counsel and terminate Mr. Juroviesky.
7Defendant’s counsel submit that since Mr. Juroviesky has been unable to find a replacement for Mr. Azar, the requirement under section 5(1)(e)(i) of the CPA that there be a suitable representative plaintiff has not been satisfied. Accordingly, the Defendant not only seeks to dismiss the motion to re-appoint Mr. Azar as representative Plaintiff, but brings its own motion to decertify the action under section 10(1) of the CPA.
II. Inflammatory allegations
8In his July 2019 motion to appoint Mr. Singer and Diamond and Diamond as class counsel, Mr. Azar made some rather far reaching allegations against Mr. Juroviesky.
9Mr. Azar deposed in his affidavit dated July 11, 2019 that he had lost all trust and confidence in Mr. Juroviesky. He stated that Mr. Juroviesky had breached the Law Society’s Rules of Professional Conduct by communicating with him at a time when Mr. Juroviesky was class counsel but Mr. Azar was exploring a change of counsel to the Diamond and Diamond firm. Mr. Azar also alleged that Mr. Juroviesky had kept for himself the full amount of a costs award that was not coming to him – effectively accusing Mr. Juroviesky of misappropriating client funds.
10Mr. Azar further alleged in his July affidavit that Mr. Juroviesky had failed to adequately explain to him the cost consequences of litigation and had failed to protect him against any costs award. He swore in that affidavit that Mr. Juroviesky’s conduct as counsel “speaks, in my mind, to Mr. Juroviesky’s character, integrity, and to his professional misconduct.”
11Reading Mr. Azar’s affidavit of July 11, 2019, one could almost forget that Mr. Juroviesky was the successful counsel in the certification motion. The reader of Mr. Azar’s July testimony is made to understand that, from the affiant’s point of view, there is only one silver lining in the dispute that had arisen between the representative Plaintiff and class counsel, and that is that the class could now potentially be represented by a lawyer and law firm – Mr. Singer and Diamond and Diamond – who now have a chance at success.
12According to Mr. Azar, it was Mr. Singer who assured him that Mr. Juroviesky had breached the Law Society’s code of ethics, and it was Mr. Singer that advised him that Mr. Juroviesky had scooped the costs award when he was not entitled to it. Mr. Azar deposed that Diamond and Diamond would see to the proper funding of the class action in a way that had been overlooked by Mr. Juroviesky – either through a third-party funder or via the Law Society’s class proceedings fund – and that Mr. Singer and his firm would arrange an appropriate indemnity agreement with him that was missing from his arrangement with Mr. Juroviesky.
13Mr. Azar concluded his July 11, 2019 affidavit with the observation that the class faced a hard fight with the Defendant, who is represented by a prestigious law firm. He opined that having Mr. Singer and Diamond and Diamond representing the class instead of Mr. Juroviesky would ensure “that the class has a fair chance”. In other words, it was not just a matter of professional ethics, but also one of resources and lawyering experience and skill; Mr. Azar assured the court in his affidavit that “the class will have a better chance of success” with Mr. Singer than with Mr. Juroviesky as class counsel.
14According to Mr. Azar, it now turns out that all of that was wrong. Mr. Azar lost his motion to remove Mr. Juroviesky as class counsel, and in my July 2019 ruling he was himself removed as representative Plaintiff. Suddenly, in his affidavit filed in the present motion and sworn September 22, 2019, less than 2 months after the July debacle, Mr. Azar realized that he “had high confidence in Mr. Juroviesky and trusted him with all of the legal projects that I requested he handle”.
15Whereas in his July affidavit Mr. Azar had painted Mr. Juroviesky as guilty of professional misconduct, by September he was willing to label that sworn testimony as “false accusations”. According to his September affidavit, Mr. Azar is now prepared to “have signed a new revised retainer with Mr. Juroviesky which provides for additional clarity” to his effective representation of the class.
16What is even more interesting is that in his new affidavit Mr. Azar has come to the conclusion that it is none other than Mr. Singer and his law firm who are the culprits in this story. In his September affidavit Mr. Azar deposes that, “Mr. Singer, the Diamond and Diamond firm, and Mr. Nunes [a law clerk] poisoned my mind against Mr. Juroviesky.” He now states that he was “an unfortunate victim of Mr. Singer, the Diamond and Diamond firm, and Mr. Nunes”, and that they had “coordinated amongst themselves to lure me into a security zone and prey upon me”.
17In other words, in July 2019 Mr. Singer and his firm were described by Mr. Azar as the lawyers that were not only ethically superior to Mr. Juroviesky but were the lawyers who would give the class a fighting chance in the case. Then, in September 2019, Mr. Singer and his firm were described by Mr. Azar as “unscrupulous professionals” who had “poisoned [his mind] against Mr. Juroviesky by design”, and Mr. Juroviesky again became the trusted counsel.
18I did not believe Mr. Azar in July when he offered up his sworn accusations against Mr. Juroviesky, and I do not believe him now that he has offered up new sworn accusations against Mr. Singer and his firm. Neither of these sets of outlandish allegations has an air of credibility. Mr. Azar’s fluctuating commentary on Mr. Juroviesky and Mr. Singer appears to reflect more on Mr. Azar himself than on either lawyer.
III. Representative plaintiff
19Mr. Azar has changed his position radically and erratically from one piece of sworn testimony to another. By way of what he calls the “Backstory”, Mr. Azar states in his most recent affidavit that, “I have suffered from Severe Anxiety and have for many years.” He also goes on to state that, “I am not the brightest when it comes to business…” I take this self-description at face value.
20What is clear is that Mr. Azar is not capable of instructing counsel, thinking through the approach to the litigation, and otherwise leading the class in this action. His changes of counsel are not a “bump in the road” as Mr. Juroviesky now attempts to characterize it, but rather are part of a pattern. Mr. Azar has shown a distinct tendency to focus on himself rather than on the interests of the class.
21It does not advance the class’ case for a representative Plaintiff to vacillate between one set of inflammatory comments about counsel to another, all the while detracting attention from the actual claim against the Defendant. Mr. Azar’s July affidavit and his September affidavit have together provided the kind of demonstration that any court would need to conclude that he is not the person to steer this claim on behalf of a class of 154 of his fellow employees and former employees.
22Section 5(1)(e)(i) of the CPA requires for certification that “there is a representative plaintiff…who…would fairly and adequately represent the interests of the class”. This is more than just a formal requirement. The representative Plaintiff plays a substantive role in moving a class action forward. As the Supreme Court has put it, “The proposed representative “need not be ‘typical’ of the class, nor the ‘best’ possible representative. The court should be satisfied, however, that the proposed representative will vigorously and capably prosecute the interests of the class”: Western Canadian Shopping Centres v Dutton, [2001[ 2001 SCC 46, 2 SCR 534, para 41.
23Mr. Azar’s actions from last July’s motion through to the present motion have exhibited a lack of independent judgment and an inability to provide guidance to, and a check on, counsel’s approach to the claim. Indeed, he effectively concedes this in accusing first one counsel then the other of misleading him and prompting him into ill-considered motions. In pursuing these motions he has shown himself to lack precisely the kind of qualities that courts have identified as important to the role of representative Plaintiff:
…the major qualities of the representative plaintiff are independence and loyalty to the class and the major responsibility of the representative plaintiff is to ensure that class counsel does not improvidently settle the action sacrificing access to justice and behaviour modification to the entrepreneurial motivations that encouraged class counsel in the first place to take the enormous risks attendant on class action litigation.
Sondhi v Deloitte Management Services, 2018 ONSC 271, para 59.
24Unfortunately, Mr. Juroviesky has been unable to find a person in the class to take Mr. Azar’s place as representative Plaintiff. He has outlined efforts he has made to speak with other class members, but none of those efforts has come to fruition.
25Mr. Juroviesky submits that under the circumstances I should re-appoint Mr. Azar to his former role. He argues that this is necessary in order to ensure access to justice for the entire class. Mr. Juroviesky observes that it would be an undesirable result if the class as a whole were made to suffer due to Mr. Azar’s frailties.
26I agree that the class will be in an impossible situation without a new representative Plaintiff willing to step forward. That said, Mr. Azar is too volatile, too self-focused, and too easily manipulated and distracted from the class’ interest to qualify as representative Plaintiff in this action. It does not foster access to justice for the class to be represented by someone who is not up to the task.
27In my certification judgment of 2018, at para 48, I indicated that, “The Plaintiff appears to be an appropriate representative Plaintiff for this action.” The past two motions, however, have led me to re-visit that conclusion.
28As section 5(1)(e)(i) of the CPA represents an essential element in the certification criteria, the class as it presently stands does not qualify to be certified.
IV. Disposition
29The motion to re-appoint Mr. Azar as representative Plaintiff is dismissed.
30The action is hereby decertified in accordance with section 10(1) of the CPA.
V. Costs
31The Defendant is entitled to its costs of this motion. Defendants’ counsel have submitted a Costs Outline in which they seek an all-inclusive amount of $37,889.01 on a partial indemnity basis and $63,148.36 on a substantial indemnity basis.
32The Plaintiff has not submitted a Costs Outline, but Mr. Juroviesky estimates that his costs of the motion are in the range of $5,000. He also submits that the Defendant’s costs seem unduly high for a short motion of this nature.
33Counsel for the Defendant state that in bringing this motion they not only had to do some legal research, but they had to conduct a thorough cross-examination of Mr. Azar and had to review Mr. Azar’s present motion materials as well as his previous motion materials in fashioning an appropriate response. I tend to agree. Defendant’s counsel put in the time and effort to tie the two motions by Mr. Azar together and to present a successful case. I am not inclined to second-guess the number of hours it took them to do all of that.
34Costs are discretionary under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the criteria set out in Rule 57.01 of the Rules of Civil Procedure. These include the result of the proceeding, the principle of indemnity, and the expectations of the parties.
35Despite the rather low estimate quoted by Mr. Juroviesky, I would not think that a party in Mr. Azar’s shoes would be surprised at the Defendants’ cost request. Bringing a motion that contains the kind of allegations at issue here, and in particular one that is directly contrary to a motion he just brought 7 months ago, will inevitably prompt a thorough and somewhat costly response: see Rule 57.01(1)(0.b).
36Mr. Azar shall pay the Defendant $37,800 in costs, inclusive of all fees, disbursements, and HST.
Morgan J.
Date: January 27, 2020