Court File and Parties
COURT FILE NO.: CV-15-5217-0000 DATE: 20210218 SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF the Construction Act, RSO 1990, c. C.30, as amended
RE: ALEX ARCHDEKIN cob as ARCHDEKIN LANDCAPE AND DESIGN, Plaintiff AND: CHEONG MENG KO, MI-YEON MIA KIM, Defendants
BEFORE: RICCHETTI, RSJ.
COUNSEL: K. Scullion, Counsel for the Plaintiff M. Panacci, Counsel for the Defendants E. Upenieks, Counsel for Mr. Scullion
HEARD: Friday, February 12, 2021
Endorsement
The Motion
[1] This was a motion by the Defendants and a cross motion by the Plaintiff.
[2] This action was commenced in 2015. This is a Construction Lien Act action where the Plaintiff claims that it provided approximately $169,770.36 worth of goods and services to the Defendants home for which the Plaintiff has not been paid.
[3] This action was set down for trial on October 13, 2017 for the January 2021 Blitz sittings. This action was pre-tried in January 2020.
[4] At the pre-trial, before the presiding Master, Mr. Panacci, on behalf of the Defendants, sought to bring a motion to challenge the authenticity of the Claim for Lien. The presiding Master set a date for August 10, 2020.
[5] The motion was not properly scheduled. Mr. Panacci's motion for August 10, 2020 did not proceed. The motion was not rescheduled.
The Background
[6] The trial in this matter was scheduled to be heard in the January 2021 Blitz list commencing January 4, 2021.
[7] As is usual, counsel and the parties are required to attend an exit pre-trial to determine whether there is a possibility of resolution immediately before trial and to ascertain an exact trial date if possible. This exit pre-trial was scheduled for January 5, 2021. The trial was to commence shortly thereafter as the list permitted.
[8] Mr. K. Scullion acts for the Plaintiff and has done so since 2017. Prior to Mr. Scullion, Mr. Gilmour acted for the Plaintiff. Mr. Panacci raised allegations that Mr. Gilmour was participating in a fraud, being an alleged forged Claim for Lien. For unknown reasons, Mr. Scullion replaced Mr. Gilmour as the Plaintiff’s counsel.
[9] Mr. Panacci acts for the Defendants and has done so since the beginning of this proceeding.
[10] On December 31, 2020, days before the exit pre-trial and the trial, Mr. M. Panacci, wrote to the court seeking a chambers appointment with the RSJ to "discuss a serious conduct/ethical issue". Mr. Panacci advised he had also reported the matter to LawPro.
[11] My office provided a date of January 4, 2021 at 8:30 a.m. for the requested conference.
[12] Mr. Panacci wrote to Mr. Scullion at 7:30 on the morning of the scheduled conference (January 4, 2021) alleging that Mr. Gilmour and Mr. Scullion "knew" that the Claim for Lien was invalid because the last invoice was fraudulent; the amount of the lien was exaggerated; and that the Claim for Lien was a forgery. A copy of this letter was not provided to the court at the conference but subsequently was included in the motions described below.
[13] Mr. Panacci relies on s. 86 of the Construction Lien Act which provides that no one shall knowingly participate in the preservation or perfection of lien or represent a party at trial when the claim for lien is without foundation, is frivolous, vexatious, an abuse of process or for a wilfully exaggerated amount.
[14] These allegations are all denied by the Plaintiff and its previous counsel.
[15] Mr. Scullion and Mr. Panacci were present at the conference before me on January 4, 2021. Mr. Panacci sought to bring two motions: one to adjourn the trial and one to have Mr. Scullion removed as counsel for the Plaintiff due to the alleged misconduct/ethical breach. The court advised that, in light of these very serious allegations, Mr. Scullion might wish to seek counsel for this motion. The court also advised Mr. Panacci that unsubstantiated allegations of misconduct/breach of ethics against a lawyer could attract serious cost consequences.
[16] As a result of Mr. Panacci seeking to bring these motions to deal with the "serious conduct/ethical issue", the trial could not proceed as scheduled in January 2021. De facto, the adjournment had been achieved as a result of the allegations advanced by Mr. Panacci on behalf of the Defendants and the request to bring the motion to deal with these allegations.
[17] At the conference on January 4, 2021, the court ordered Mr. Panacci to serve and file his motion materials by January 13, 2021. Responding materials were to be filed by January 29, 2021. Reply materials were to be filed by February 3, 2021. The Motions were to be heard by me on February 12, 2021.
[18] On January 14, 2021, Mr. Panacci delivered a Notice of Motion seeking:
a) to amend the court’s endorsement of January 4, 2021; b) to adjourn the trial; c) leave to bring a motion to challenge the authenticity of the Claim for Lien; d) to amend the Statement of Defence; e) that all witnesses provide evidence in chief at the trial by affidavit; and f) costs.
[19] The troubling part with Mr. Panacci’s motion is that there was no supporting evidence. Only the Notice of Motion had been filed. This was contrary to my timetable to file the Defendant’s motion materials.
[20] The other troubling part is that Mr. Panacci did NOT include a motion to remove Mr. Scullion, despite the fact he had made very serious allegations of misconduct and a breach of ethics by Mr. Scullion.
[21] In the meantime, Mr. Scullion retained independent counsel, Mr. Upenieks, to deal with the motion to remove Mr. Scullion and to deal with rescheduling the trial for the Plaintiffs.
[22] On February 2, 2021, Mr. Upenieks wrote to the court and advised that Mr. Scullion intended to bring a motion to dismiss the Defendant's removal motion and to schedule the trial and asked that this motion be heard on February 12, 2021 (the same date that Mr. Panacci’s motion was to be heard).
[23] On February 3, 2021, Mr. Upenieks filed his motion and supporting materials. This motion sought various relief, including to dismiss Mr. Panacci's motion and schedule the trial for the next available sittings.
[24] At 5:42 a.m. on February 12, 2021 (the day of the motion), Mr. Panacci finally served/filed supporting materials, which includes an Affidavit of Mi-Yeon Mia Kim. There were six volumes of electronic materials filed. This new material, served early on the morning of the motion date, adds an Amended Notice of Motion, seeking the same relief sought earlier, but now included a request for leave to file a Request to Admit.
[25] The Affidavit of Mi-Yeon Mia Kim, takes issue that the motion filed on February 3, 2021 was from a "non-party".
[26] The Affidavit of Mi-Yeon Mia Kim makes it clear that there is no objection to Mr. Scullion continuing to act for the Plaintiff, despite the fact the same Affidavit continues to make the same serious accusations against Mr. Gilmour and Mr. Scullion that were advanced in Mr. Panacci’s email of January 4, 2021.
[27] A review of the Affidavit of Mi-Yeon Mia Kim shows that proof of the serious allegations against Mr. Scullion appears to be nothing more than speculation. For example, the Affidavit describes that the Defendants have "grave concerns" that the Claim for Lien is a forgery and that the prior lawyer, and now Mr. Scullion, "have assisted him in perpetuating his fraud on our Home". A second example of this speculation is that the Defendants suggest that Mr. Gilmour must have gotten off the record because he was complicit in this fraud and, therefore, Mr. Scullion is now complicit in this fraud. To be clear, I am not making a finding as to the validity of the Claim for Lien, I simply point out that these serious allegations against Mr. Scullion do not have any clear or cogent evidence in the materials before me to support the serious allegations made against Mr. Scullion.
The Motion Hearing
[28] Construction Lien Act proceedings are to be summary proceedings. They are to be dealt with quickly, hence, the requirement that matters be set down within the specified time frame. Further, the Act provides that no interlocutory motions are to be brought without leave of the court. Generally, leave is limited to situations where the motion will resolve the entire proceeding or will make the proceeding more efficient. It is difficult to get leave.
[29] At this hearing, Mr. Panacci objected to Mr. Upenieks’ attendance, since there was no motion before the court to remove Mr. Scullion. However, the materials also show that Mr. Upenieks appeared to be seeking other relief for the Plaintiff – not just on the removal of Mr. Scullion as counsel.
[30] Mr. Panacci was content to have the trial on the May 2021 Blitz sittings and wanted the court to provide direction regarding Affidavit evidence as evidence-in-chief. Mr. Upenieks had asked for this relief. Accordingly, this matter is to be tried in the May 2021 Blitz sittings and is peremptory on all parties.
[31] Mr. Panacci also wanted leave to file a Request to Admit. However, there is no satisfactory explanation why this is being done this late (more than 5 years after the action was commenced) or why leave should be granted, if indeed leave is necessary to serve a Request to Admit.
[32] Mr. Panacci did not explain why the Defendants failed to comply with the court order of January 4, 2021 to file their motion materials by January 13, 2021.
[33] Mr. Panacci did not explain why his supporting materials were filed just hours before the hearing. Mr. Upenieks had not even had an opportunity to review the newly served materials.
[34] Mr. Panacci did not explain why, after making serious allegations against Mr. Scullion and continuing with those allegations in his client’s affidavit filed that morning, the Defendants did not bring a motion to remove Mr. Scullion.
[35] Essentially, all Mr. Panacci wanted to discuss was how the trial was to proceed in May 2021.
[36] It appears that Mr. Panacci’s allegations against Mr. Scullion were used at the last minute to derail the January 2021 trial and Mr. Panacci had achieved that goal. The serious allegation against Mr. Scullion appears to have been abandoned once the trial was adjourned to accommodate Mr. Panacci’s request to bring the motion.
[37] Nevertheless, these serious allegations against Mr. Scullion were made and are contained in the affidavit of Mi-Yeon Mia Kim, a public document.
[38] Mr. Panacci indicated he wanted to bring the motion to declare the Claim for Lien invalid at the beginning of the trial. I indicated that, since all the evidence in the trial might bear on this issue, this issue is best left for the end of the trial. However, that will be a decision for the trial judge.
[39] The Defence motion is dismissed in its entirety, without prejudice to the issue of the validity of the Claim for Lien being pursued by the Defence at trial, if so advised.
[40] Given the position of the Defendants in their Affidavit, the issue regarding the removal of Mr. Scullion as counsel for the Plaintiff at trial is abandoned with prejudice.
[41] There is no reason to deal with the Plaintiff’s cross motion since the removal motion is abandoned and the new trial date is May 2021.
[42] If counsel want to provide for Affidavits of witnesses as examinations-in-chief or exchange Requests to Admit, they can come to a written agreement to this effect and proceed in accordance with the written agreement.
[43] I advised counsel of this decision at the end of the motion and advised there would be written reasons subsequently delivered. These are those reasons.
Costs
[44] Mr. Scullion seeks costs. Mr. Panacci denies that Mr. Scullion or the Plaintiff is entitled to costs of these motions. I gave both counsel directions regarding the filing of written submissions on this issue since no motion was actually brought to remove Mr. Scullion.
[45] Counsel were provided with an opportunity to make written submissions on whether Mr. Scullion or the Plaintiff are entitled to costs and if so, scale and quantum.
[46] Similarly, if the Defence seek costs of this motion, then Mr. Panacci shall also have the opportunity to make written submissions on entitlement, scale and quantum.
Ricchetti, RSJ. Date: February 18, 2021