Court File and Parties

COURT FILE NO.: CV-19-00624020 DATE: 2021-09-08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Toronto Standard Condominium Corporation No. 1724, Respondent AND: Evgeni Evdassin, Applicant

BEFORE: Davies J.

COUNSEL: John De Vellis and Inderpreet Suri, for the Respondent Jonathan Shulman, for the Applicant

HEARD (by video): September 3, 2021

REASON FOR DECISION

A. Overview

[1] On July 6, 2021, I heard an application by Mr. Evdassin to set aside a $29,572.90 lien registered on his condominium by Toronto Standard Condominium Corporation No. 1724, which owns the building where Mr. Evdassin lives. The lien is for the legal fees incurred by the Condominium to obtain and enforce a compliance order against Mr. Evdassin. In March 2020, I made an order under s. 134 of the Condominium Act, 1998, S.O. 1998, c. 19 requiring Mr. Evdassin to replace faulty pipes in his unit (TSCC No. 1724 v. Evdassin, 2020 ONSC 1520). I also ordered Mr. Evdassin to pay $11,446.82 in costs. Mr. Evdassin now argues that the lien is invalid because it exceeds the cost order I made.

[2] Mr. Shulman appeared for Mr. Evdassin at the hearing on July 6, 2021. Mr. Evdassin did not attend. Two days later, I received information from Mr. De Vellis that the Law Society of Ontario administratively suspended Mr. Shulman at the end of June 2021. If that is true, Mr. Shulman was not licensed to practice law in Ontario when Mr. Evdassin’s application was heard.

[3] I convened a hearing on September 3, 2021 to receive submissions on the impact of Mr. Shulman’s suspension on my jurisdiction to rule on Mr. Evdassin’s application. After hearing submissions from all parties, including from Mr. Evdassin directly, there are two issues for me to decide:

(a) Does Mr. Shulman’s suspension affect my jurisdiction to rule on Mr. Evdassin’s application?

(b) Should I order Mr. Shulman to pay the costs of the September 3, 2021 hearing personally?

[4] I am satisfied that I can and should rule on Mr. Evdassin’s application notwithstanding Mr. Shulman’s suspension. I am also satisfied that this one of the rare cases in which an order requiring counsel to pay the costs personally is warranted.

B. Impact of Mr. Shulman’s suspension

[5] According to the Law Society of Ontario website, Mr. Shulman was still suspended on September 3, 2021. Nevertheless, I granted him leave to provide me with information about the status of his suspension and to make submissions about whether I should rule on Mr. Evdassin’s application. Mr. Shulman advised that he was suspended because he did not pay his annual fees or file his annual report on time. I accept Mr. Shulman’s representation on this issue.

[6] I ordered Mr. Evdassin to attend the September 3, 2021 hearing. I wanted to make sure Mr. Evdassin knew Mr. Shulman’s license had been suspended before his application was argued. I also wanted to hear from Mr. Evdassin directly about whether he wanted me to rule on his application to remove the lien even though Mr. Shulman was suspended at the time it was argued. I told Mr. Evdassin that if he wanted me to rule on his application, I would fully consider Mr. Shulman’s submissions and all the written materials filed by Mr. Shulman in advance of the motion.

[7] Mr. De Vellis, Mr. Shulman and Mr. Evdassin all took the position that I should rule on Mr. Evdassin’s application. They argued that it was not in the interests of justice to re-schedule Mr. Evdassin’s application. They all argued that re-scheduling the application would cause unnecessarily delay and expense.

[8] In my view, only Mr. Evdassin’s interests could have been prejudiced by Mr. Shulman’s suspension. Mr. Evdassin is a paralegal, which gives me comfort that he understands the significance of what has happened and can assess whether he has been prejudiced by Mr. Shulman’s suspension. Mr. Evdassin was clear that he wants me to rule on his application.

[9] I am satisfied that I have jurisdiction to rule on Mr. Evdassin’s application even though Mr. Shulman was not licensed to practice law at the time of the hearing and Mr. Evdassin was not present at the hearing. I agree with the parties that it would not be in the interests of justice to have the application re-heard. The matter was fully briefed and argued. Mr. Evdassin’s written materials were filed before Mr. Shulman was suspended. It is also relevant that Mr. Shulman’s suspension is not related to concerns about his competence to practice law. In my view, it would cause unnecessary delay and expense to have the matter argued again. I will, therefore, rule on Mr. Evdassin’s application. I will release separate reasons on the merits of his application in due course.

C. Costs Against Counsel

[10] On behalf of the Condominium, Mr. De Vellis requested $800 in costs for the September 3, 2021 hearing. I raised the issue of whether Mr. Shulman ought to be ordered to pay any awarded costs personally under r. 57.07. In accordance with r. 57.07(2), I gave Mr. Shulman an opportunity to make submissions on whether he should be ordered to pay any awarded costs personally.

[11] Mr. Shulman asked that I not order him to pay costs. Mr. Shulman argued that he has been diligent in dealing with the issue of his suspension since it was brought to his attention and has not caused unnecessary costs to be incurred. I do not agree.

[12] This matter first came to my attention on July 8, 2021. Even if I accept that Mr. Shulman was not aware of his suspension before then, he still has not resolved the matter after almost two months. If the suspension was for non-payment of fees and a failure to file an annual report, those issues could and should have been resolved within a few days.

[13] Mr. Shulman’s conduct since the issue of his suspension arose has added significantly and unnecessarily to the costs incurred by the Condominium to resolve this issue.

[14] Mr. Shulman advised the Court on July 8, 2021 that he was not aware of the suspension but would address the issue that same day. Mr. Shulman also said he would file his cost submissions in relation to Mr. Evdassin’s application once the Law Society confirmed his suspension had been lifted. Mr. Shulman never provided any further information about the status of his suspension. Nor did he file cost submissions on Mr. Evdassin’s behalf.

[15] Because I had heard nothing further from Mr. Shulman, my assistant sent an email to all counsel on July 29, 2021 notifying them that I wanted to convene a hearing on the impact of Mr. Shulman’s suspension on my jurisdiction to rule on Mr. Evdassin’s motion. I offered dates during the first week of August for the hearing. On my behalf, my assistant asked Mr. Shulman to provide written confirmation from the Law Society that his suspension was resolved. Mr. Shulman never responded to my assistant’s email.

[16] On August 9, 2021, I issued an endorsement unilaterally scheduling a hearing for August 19, 2021. I also ordered Mr. Shulman to file a written explanation for his suspension and written confirmation from the Law Society of the status of his suspension. The Condominium asked me to reschedule the hearing because neither of its counsel were available on August 19, 2021. My assistant sent an email on August 10, 2021 proposing two alternative dates for the hearing: September 3 and September 7, 2021. All parties were asked to confirm their availability by August 13, 2021. Mr. De Vellis and Mr. Evdassin responded immediately. Mr. Shulman never responded.

[17] On August 18, 2021, I issued another endorsement rescheduling the hearing for September 3, 2021. I again ordered Mr. Shulman to file a written explanation for his suspension and written confirmation from the Law Society of the status of his suspension. I extended the deadline for Mr. Shulman to file the requested information to August 30, 2021. Mr. Schulman did not comply with my order. He did not file anything in advance of the hearing.

[18] Mr. Shulman claimed that he did not read my August 18, 2021 endorsement. He said that he had an accident in July and was hospitalized with a fractured spine and wrist. I was very sorry to hear about Mr. Shulman’s accident and I wish him a full recovery.

[19] It is difficult to know how Mr. Shulman’s accident affected his ability to deal with his suspension or with Mr. Evdassin’s matter. Mr. Shulman did not provide any written confirmation about when he was injured, the extent of his injuries, how long he was hospitalized, when he was released from hospital or how his practice was managed while he was hospitalized. During the hearing Mr. Shulman made only vague comments about when the accident happened and how long he was in hospital. If this is the reason for Mr. Shulman’s inability to resolve his suspension and communicate with the Court, I would have expected him to file an affidavit setting out the timelines or, at a minimum, have those dates available to provide to the Court. Mr. Shulman did neither.

[20] Mr. Shulman also made several seemingly inconsistent statements during the September 3, 2021 hearing. For example, he told me he appointed a Power of Attorney to manage his practice while he was in hospital. However, he also said he did not know about my August 18, 2021 endorsement because he was unable to read all his incoming emails while he was recovering. If Mr. Shulman appointed a Power of Attorney to manage his practice, that person would have presumably been monitoring his emails and would have read my endorsement requiring Mr. Shulman to file written material before the hearing. Mr. Shulman also said he had done research on whether his suspension impacted my jurisdiction to rule on Mr. Evdassin’s motion and was unable to find any cases in which that issue has arisen. I outlined the issue I wanted the parties to address in my August 9, 2021 and my August 18, 2021 endorsments. In each endorsement, I also ordered Mr. Shulman to file a written explanation of his suspension and written confirmation from the Law Society about the status of his suspension before the hearing. It is not clear how Mr. Shulman knew what issue to research if he did not read my August 9 or August 18, 2021 endorsement. And if he read either endorsement, he would have also read my order requiring him to submit written material about his suspension before the hearing.

[21] Mr. Shulman repeatedly said he took steps to address his suspension as soon as it was brought to his attention. However, he also said that he did not file the necessary paperwork to resolve his suspension until September 2, 2021, which was the day before the hearing before me.

[22] I must exercise extreme caution before ordering Mr. Shulman to pay costs personally. I must not impose a cost order against Mr. Shulman as a disciplinary matter: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3 at pp. 135 - 136. Rather, I must first consider whether Mr. Shulman “caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default”: Rules of Civil Procedure, r. 57.07(1). Second, I must consider whether the imposition of a costs award against Mr. Shulman personally is warranted: Galganov v. Russell (Township), 2012 ONCA 410 at paras. 17 - 22. Cost awards against a lawyer should be made sparingly and only in clear cases.

[23] I am satisfied that Mr. Shulman’s conduct meets the test articulated in r. 57.07(1). Mr. Shuman’s suspension and his failure to respond to the Court in a timely manner caused the Condominium to incur unnecessary costs. The Condominium was required to respond to repeated correspondence and endorsements from the Court. I also ordered the Condominium to deliver my endorsements to Mr. Edvassin personally because Mr. Shulman was not responding. The Condominium was also required to research the impact of Mr. Shulman’s suspension on the court’s jurisdiction to rule on Mr. Evdassin’s application.

[24] In my view, the Condominium should be compensated for the cost it incurred responding to an issue that is extraneous to the issues in the litigation and was caused entirely by Mr. Shulman’s failure to comply with the Law Society’s By-Laws. However, it would not be fair to order Mr. Evdassin to pay the Condominium’s costs for sorting out the impact of Mr. Shulman’s suspension. Mr. Evdassin is not to blame for the fact that Mr. Shulman was suspended or for Mr. Shulman’s failure to address the matter expeditiously.

[25] The only way to ensure the Condominium is compensated for its costs but Mr. Evdassin is not prejudiced by his counsel’s conduct is to order Mr. Shulman to pay the Condominium’s costs personally. In my view, this is one of those rare cases that warrants a cost order against counsel.

[26] The Condominium is only requesting $800 in costs. In my view, that is completely reasonable in the circumstances. Mr. Shulman is, therefore, ordered to pay the Condominium $800 plus HST in costs within 10 days.

D. Sealing Order

[27] Mr. Shulman asked me to seal my endorsement if I order him to pay costs personally. Mr. Shulman argued that a costs order against him personally will negatively impact his professional reputation.

[28] There is a strong presumption that the work of the Court should proceed in public. Reporting on court cases is an essential part of the open court principle. Limits on public access to court proceedings and court rulings can only be justified when necessary to protect a serious risk to the proper administration of justice and the salutary affects of any limit outweighs its impact on the rights and interests of the parties and the public: R. v. Mentuck, 2001 SCC 76 at para. 32, Sherman Estate v. Donovan, 2021 SCC 25 at para. 30 -32. While protecting the privacy and dignity of people involved in the justice system can justify a sealing order in some cases, those cases will be exceptional. However, the fact that openness will cause embarrassment, distress or disadvantage will generally not warrant the granting of a sealing order: Sherman Estates at para. 63. Mr. Shulman’s concerns about his reputation do not justify departing from the open court principle.

E. Notification to the Law Society

[29] Mr. Shulman told me that he has advised the Law Society that he appeared before me when his licence was suspended. I hope that is true. I am sending a copy of these reasons to the Law Society along with my August 9 and August 18, 2021 endorsements, all correspondence about this issue and an audio recording of the September 3, 2021 hearing so the Law Society can decide whether any regulatory actions should be taken as a result of what transpired in this case.

F. Conclusion

[30] Mr. Schulman is ordered to pay the Condominium $800 plus HST in costs within 10 days.

[31] Assuming Mr. Shulman’s administrative suspension has been resolved, he is to file a costs outline for Mr. Evdassin’s application to set aside the lien no later than 4:00 p.m. on Thursday, September 9, 2021. Mr. Shulman is also ordered to provide written confirmation from the Law Society that his suspension has been lifted with his costs outline.

Davies J.

Date: September 8, 2021