Court File and Parties

COURT FILE NO.: CV-17-581322-00CP DATE: 20210706

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GEORGE AZAR, Plaintiff – and – STRADA CRUSH LIMITED, Defendant

BEFORE: E.M. Morgan, J.

COUNSEL: Henry Juroviesky and Tony Vacca, for the Plaintiff Rahool Agarwal and Maya Bretgoltz, for the Defendant

HEARD: July 5, 2021

MOTION TO RE-CERTIFY

[1] The Plaintiff brings a motion to re-certify this action under section 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”). The case has had a rather tortured history.

[2] On August 17, 2018, I issued a judgment certifying this proceeding as a class action. The named, George Azar, was appointed as representative Plaintiff and his counsel, Henry Juroviesky, was appointed as class counsel: Azar v. Strada Crush Limited, 2018 ONSC 4763. The point on which the parties join issue here is whether a new representative plaintiff proposed by Mr. Juroviesky, Taylor Wineck, is an appropriate person to fill the role.

[3] Mr. Juroviesky and Mr. Azar had a falling out the following year, and on May 22, 2019 another lawyer, Darryl Singer, delivered a Notice of Change of Lawyer appointing himself and his firm, Diamond and Diamond Lawyers LLP (“Diamond & Diamond”), as Plaintiff’s lawyers of record. Mr. Juroviesky sought to resist this change. On July 17, 2009, Mr. Juroviesky brought a motion to disqualify Mr. Azar as representative plaintiff, or, in the alternative, to appoint a litigation guardian over Mr. Azar.

[4] On July 21, 2019, Mr. Azar responded with a motion to replace Mr. Juroviesky with Diamond & Diamond as class counsel. Mr. Azar explained in his evidence that for a number of reasons he had lost trust and confidence in Mr. Juroviesky. The two motions were heard together, and on July 23, 2019 I dismissed Mr. Azar’s motion to appoint Mr. Singer and Diamond & Diamond as class counsel. I also ruled that Mr. Azar had failed to fairly and adequately represent the class as required under subsection 5(1)(e)(i) of the CPA, and that he had preferred his personal interest over that of the class in seeking to end Mr. Juroviesky’s role as class counsel.

[5] During all of these maneuvers, the Defendant and its counsel, Rahool Agarwal, played little role and respectfully watched the proceedings for the most part from the sidelines. In my July 23, 2019 ruling, I directed that the Defendant was at liberty to move to de-certify the matter as a class action if Mr. Juroviesky did not serve a motion to replace Mr. Azar with a new representative plaintiff within 60 days.

[6] In the course of my reasons for judgment dismissing Mr. Azar’s motion to change class counsel, I observed that the retainer agreement between Mr. Azar and Mr. Juroviesky failed to adequately address Mr. Azar’s potential exposure to an adverse cost award. As a consequence, I directed Mr. Juroviesky to address this frailty in the retainer agreement with any new representative Plaintiff: Azar v. Strada Crush Limited, 2019 ONSC 4436.

[7] As it turned out, Mr. Juroviesky did not serve a motion to replace Mr. Azar as representative plaintiff within the 60 days he had been given to do so. He apparently had reconciled with Mr. Azar, and so on September 23, 2019 – i.e. on the 60th day – he brought a motion to reinstate Mr. Azar as representative Plaintiff. For its part, the Defendant moved to decertify the proceeding as a class action.

[8] On the Plaintiff’s side, the allegations in the motion to reinstate Mr. Azar were rather unseemly. Whereas in his July 2019 affidavit Mr. Azar had painted Mr. Juroviesky as guilty of professional misconduct, in his September 2019 affidavit Mr. Azar labeled his own previously sworn testimony as “false accusations”. Mr. Azar deposed under oath that he is “not the brightest” and accused Diamond & Diamond of being “unscrupulous professionals” and “victimiz[ing]” him as part of a plan to impugn Mr. Juroviesky and oust him as class counsel”.

[9] Mr. Juroviesky himself was a bit opaque in explaining what had transpired. He did not really shed light on how in September 2019 Mr. Azar had become an acceptable class representative when in July 2019 he had argued that Mr. Azar was so unreliable and mentally infirm that he required a litigation guardian to make all decisions on his (and the class’) behalf.

[10] In the result, I again rejected Mr. Azar as an appropriate representative Plaintiff. I also indicated that Mr. Juroviesky had failed to come up with a new and suitable representative Plaintiff within the 60-day period as set out in my previous Order, and that he showed no signs of producing a new Plaintiff anytime in the future. Consequently, I granted the Order sought by the Defendant de-certifying the action and awarded costs to the Defendant: Azar v. Strada Crush Limited, 2020 ONSC 549.

[11] Subsequent to that motion, Mr. Azar, still represented by Mr. Juroviesky, resisted paying the costs that had been awarded to the Defendant. Mr. Agarwal, on behalf of the Defendant, then served a Notice of Motion seeking to enforce the costs award, and what followed was a set of responding materials by Mr. Azar that contained allegations of even more unseemly conduct than his previous affidavit. This included his admitting to having orchestrated a “lockout” campaign against Mr. Joroviesky in which he spread false information about Mr. Juroviesky in order to convince the other class members, including the newly proposed representative Plaintiff, Mr. Wineck, to refuse to cooperate in becoming representative Plaintiff in Mr. Azar’s stead. That costs motion was then settled between the parties and so was never adjudicated in court.

[12] It is now just shy of two years since Mr. Juroviesky was given 60 days to propose a new representative Plaintiff. Mr. Juroviesky has suddenly come up with Mr. Wineck for that role and seeks re-certification of the proceeding. I should indicate at this point that Mr. Wineck was not exactly a newly found class member. He had supported Mr. Azar with an affidavit in the original certification motion in 2018 and was cross-examined in that motion with Mr. Juroviesky acting as his counsel.

[13] Mr. Wineck has sworn an affidavit in support of the present motion and was cross-examined on that affidavit. During his cross-examination, Mr. Juroviesky refused to permit him to answer questions with respect to the history of these proceedings. Mr. Juroviesky also refused to permit the proposed representative Plaintiff to answer anything related to the various allegations levelled in the previous motions, in some of which Mr. Wineck was himself implicated.

[14] The questions that Mr. Wineck did answer were even more concerning than those that he did not answer. In the first place, his answers indicated that he had not sworn his affidavit himself but rather that Mr. Azar had sworn it on his behalf. In a subsequent examination he attempted to reverse this answer and contradicted what he had said earlier. Importantly, Mr. Wineck also indicated that he had not considered the costs arrangements for the present motion and was apparently unaware that as representative Plaintiff he may be liable for costs awarded to the Defendant.

[15] Most significantly, Mr. Juroviesky refused to allow Mr. Wineck to answer whether he had an indemnity agreement with his counsel. That, of course, was an explicit part of my July 2019 ruling. At paragraph 18 of my July 23, 2019 reasons for judgment, I specifically said: “Some provision must be made to indemnify the Plaintiff (or any future representative Plaintiff in this matter) for an adverse costs award”. That was not made an option for any new Plaintiff and his or her counsel, and was not a matter of confidentiality that was off limits for Defendant’s counsel to inquire about.

[16] Ensuring that the retainer agreement contained a costs indemnity clause was a specific condition of Mr. Juroviesky proceeding any further with a new representative Plaintiff. I did not think it appropriate for a new Plaintiff to have to bear the risk of costs in class action litigation the way that Mr. Azar had been made to do in his retainer agreement. For Mr. Juroviesky to refuse to allow any information in that regard to be part of the record effectively put Mr. Wineck offside as a potential representative Plaintiff and put Mr. Juroviesky offside as a potential class counsel in any re-certification.

[17] Mr. Agarwal points out that the doctrine of abuse of process is commonly applied where, like here, the litigation before the court is found to be an attempt to re-litigate an issue on which the court has already ruled. The policy is not just to preserve resources that will otherwise be needlessly spent, but to protect the principle of finality which is, as the Supreme Court of Canada said in Toronto (City) v. C.U.P.E., Local 79 Toronto (City) v. CUPE, Local 79, 2003 SCC 63 at para 37, “crucial to the proper administration of justice”.

[18] In the class action context, where defendants face multiple potential plaintiffs all with the same or similar claims, this principle is particularly important. So, for example, in Bear v. Merck Frosst Canada & Co., 2011 SKCA 152 at paras 74, the Saskatchewan Court of Appeal stated that “a defendant in a class action environment should not face a revolving door of representative plaintiffs who serially advance certification application after certification application until they (perhaps) find one that succeeds”. The Court further reasoned, at para 75, that the concerns over abuse of process…

…are substantially heightened when the same law firm acts in successive certification efforts. The door to abuse can be opened by the ongoing involvement of one lawyer or one firm when this fact is combined with the reality that new representative plaintiffs can be drawn from the pool of persons in the class previously proposed in an unsuccessful certification application.

[19] In expressing this concern, the Saskatchewan Court of Appeal stated in a precise way the very thing that troubles me here. I gave Mr. Juroviesky a 60-day window in order to rectify the situation. He had a list of class members to contact; the list itself was not difficult to come up with as this is an employment case and the relevant employees of the Defendant during the class period are all known. As indicated above, he was already quite familiar with Mr. Wineck, as he had been an affiant in the original motion for certification. The only reason that has been advanced for Mr. Juroviesky and the class not being able to produce a new representative plaintiff within 60 days of my July 2019 ruling is the supposed “lockout” campaign participated in by Mr. Azar and others, including Mr. Wineck.

[20] During the course of the now resolved motion for costs brought by the Defendant, Mr. Azar filed an affidavit in response. Counsel for the Defendant has included that affidavit in its current responding record. They also summoned Mr. Azar to be examined on this motion.

[21] Strangely, this time around Mr. Azar deposed that he could not recall any lockout campaign in which he and other class members sought to prevent Mr. Juroviesky from continuing with the class action by disseminating false information about him. I don’t know which is true and which is false – whether there was a lockout campaign by Mr. Azar and others aimed at Mr. Juroviesky, or whether there was no lockout campaign and the reason for Mr. Juroviesky failing to come up with another plaintiff sooner has never been disclosed. What I do know is that each time the Plaintiff’s side of this case comes back to court, the waters in which it wades get muddier. There are so many falsehoods in the record that deponents on the Plaintiff’s side seem now to be falsifying the fact that they admitted spreading falsehoods.

[22] The Defendant and its counsel have, as I have said, acted appropriately all along and have mostly sat by while the Plaintiff’s side has fought with and slung egregious and contradictory accusations at each other. It has become apparent that although the Defendant and counsel have been good litigation citizens, they have by now had enough. It is hard to blame them.

[23] Permitting Mr. Wineck to serve as a representative plaintiff, with Mr. Juroviesky as his counsel, would effectively render meaningless my previous rulings. On July 23, 2019, I gave Mr. Juroviesky 60 days to produce a new representative plaintiff with an appropriate retainer agreement, and on January 27, 2020, I rejected re-instatement of Mr. Azar as representative plaintiff and de-certified this case due to the myriad of self-serving and false testimony that the Plaintiff’s side has presented.

[24] One goal of my July 23, 2019 ruling was to ensure that if a new representative plaintiff were found, Mr. Juroviesky would provide that person with a suitable indemnity respecting costs. As already indicated, I do not know if he has done that with Mr. Wineck. Mr. Juroviesky submitted at the hearing that the indemnity is irrelevant because Mr. Wineck has the means to pay costs himself. There is no evidence in the record of Mr. Wineck’s financial situation, and in any case that does not exactly answer my earlier concern about a representative plaintiff having a proper indemnity agreement in place. A wealthy person cannot be blindly led into exposing himself to costs liability as representative plaintiff any more than anyone else. Mr. Wineck specifically said under oath that he did not know the cost implications of this case.

[25] Furthermore, at each turn there are admitted falsehoods in the record on the Plaintiff’s side of the case. Mr. Wineck is now implicated along with Mr. Azar in having been part of the “lockout” falsehoods spread among the class. I do not implicate Mr. Juroviesky himself in spreading his clients’ falsehoods; in fact, he has also been the victim of them. But he has been used and turned against several times by his clients in a way which has made him ineffective as their counsel.

[26] Mr. Juroviesky presented Mr. Azar twice as a supposedly appropriate representative plaintiff, and has also now twice presented him as having fabricated matters for the court. He now presents Mr. Wineck who was, if Mr. Azar can be believed once but not twice, a participant in the so-called lockout of Mr. Juroviesky in which more falsehoods were spread. I do not know how Mr. Juroviesky can still have the rapport with the class that class counsel should have.

[27] More generally, the entire purpose of my ordering a 60-day time frame in my July 2019 ruling was to ensure finality in the face of what was already a very unusual intra-plaintiff’s side fight. At this point, the Defendant deserves to have the finality principle taken seriously and enforced.

[28] In CUPE, supra, at para 52, the Supreme Court of Canada identified only limited cases where the bar against re-litigation would be unfair: (a) when the first proceeding is tainted by fraud or dishonesty, (b) when previously unavailable evidence impeaches the original results, or (c) when fundamental fairness requires that the original result should not be binding. I do not see any of these factors present here. Although there are numerous falsehoods by witnesses on the Plaintiff’s side of this case, none of the prior rulings were procured by fraud in the usual sense of that phrase. Furthermore, there is no fresh evidence here. Mr. Wineck has not been recently discovered; he was known to Mr. Azar and to Mr. Juroviesky all along and was apparently approached previously but did not want to come forward as plaintiff.

[29] Other than the now mysterious “lockout” campaign against Mr. Juroviesky, I have not been provided with any reason for me to deviate from my prior decisions of July 23, 2019 and January 27, 2021. The question of fundamental fairness points in the Defendant’s favour, not the Plaintiff’s. This case was certified the first time it was presented, which gives me concern about fairness to other class members in pursuing their claims. But it is the Plaintiff’s own side of this case that has brought any unfairness on them.

[30] In light of all that has transpired, to allow this very late change of representative plaintiff, especially given the circumstances that he was a known class member previously and was taken in by the fraudulent mayhem sewn by Mr. Azar, would work considerable unfairness to the Defendant. It would also abuse the processes of the court.

[31] In a last minute reply submission at the end of yesterday’s hearing, Mr. Juroviesky sought to distance himself from Mr. Azar’s several changes of testimony about the lockout campaign and other matters. He submitted that I should not take seriously anything Mr. Azar says in an affidavit or under cross-examination as he is unstable.

[32] To bolster his point, Mr. Juroviesky said that Mr. Azar had attended his last cross-examination in this motion dressed in full Superman costume, red cape and all. Mr. Agarwal then interjected a correction, explaining that he had also been present at that examination and that in fact Mr. Azar had been dressed otherwise normally but was wearing a Superman t-shirt, not a full costume. In other words, Mr. Juroviesky suggested that his client had lost touch with reality, while Mr. Agarwal suggested that Mr. Juroviesky was exaggerating the situation for dramatic effect.

[33] The machinations on the Plaintiff’s side of this case have finally taken on an other-worldly quality. It is clear to me that under present conditions the case cannot be re-certified; it has become kryptonite in the class members’ and their counsel’s hands.

[34] The Plaintiff’s motion to re-certify the action is dismissed.

[35] The parties may make written submissions on costs. I would ask Defendant’s counsel to send to my assistant by email short submissions (3 pages maximum) within two weeks of today, and for Plaintiff’s counsel to send to my assistant equally short submissions within two weeks thereafter. There is no need to deliver copies of authorities with these submissions, provided that any cases are cited with full citations so that they can be found online.

Date: July 6, 2021 Morgan J.