Court File and Parties

COURT FILE NO.: CV-19-00617588 MOTION HEARD: 2022-07-12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mark Couper and Impetus Marketing Corp., Plaintiffs AND: Adair Barristers LLP, Adair Goldblatt Bieber LLP and John Adair, Defendant

BEFORE: Associate Justice L. La Horey

COUNSEL: Mark Couper, Plaintiff in Person for himself and Impetus Marketing Corp. Hunter Norwick, Counsel for the Responding Party Defendants

HEARD: July 12, 2022, by videoconference

REASONS FOR DECISION

[1] The plaintiffs bring this motion seeking leave to further amend their statement of claim and to compel answers to questions refused at the examination for discovery of John Adair. Mr. Adair was discovered on May 18 – 20, and June 29, 2021. For the reasons that follow, the motion for refusals is allowed in part. As set out below, the motion to amend is on consent.

OVERVIEW

[2] In this lawyer’s negligence action Mr. Couper claims against John Adair, his former firm Adair Barristers LLP (“AB”) and his current firm Adair Goldblatt Bieber LLP (“AGB”) for negligence in the conduct of a litigation matter in which he was the plaintiff, Couper v Nu-Life Corp. et al. (“the underlying action”). Following a four-week trial before Justice J.A.B. MacDonald, Mr. Couper was partially successful in the underlying action. He obtained in judgment on an employment agreement for approximately US$500,000, but was unsuccessful on his claim for a US$5,000,000 payment in connection with another agreement, referred to as the “Side Agreement”. The defendants appealed and the plaintiff cross-appealed. The Court of Appeal for Ontario dismissed the appeal and cross-appeal.

[3] In this action, Mr. Couper claims damages of $10,000,000, $400,000 for aggravated, punitive and /or exemplary damages and repayment of up to $820,000 in respect of legal fees paid to AB.

[4] The underlying action was commenced by one of Mr. Couper’s former counsel. It had already been pre-tried when Mr. Couper changed counsel and signed a retainer agreement with Adair Morse LLP on April 23, 2013. Mr. Couper pleads that he provided Mr. Adair with a copy of a 53-page pre-trial memorandum that attached 100 tabs of evidence (the “PTC Memorandum”) prepared in February 2013 by one of Mr. Couper’s former lawyers. Mr. Couper contends that he directed Mr. Adair to use the evidence referred to in the PTC Memorandum at trial, and to follow the “already developed strategy” described in the PTC Memorandum. In the alternative, the plaintiffs plead that Mr. Adair ought to have used this evidence and followed this strategy. Among the claims of negligence, Mr. Couper alleges that Mr. Adair did not use the evidence at trial that was detailed in the PTC Memorandum that would have proved the Side Agreement.

[5] Mr. Couper alleges that Mr. Adair assured him that he and Geoffrey Adair, Mr. Adair’s father and a senior lawyer, would be working closely together on the file. He pleads that the defendants were committed to a “senior counsel approach” with Geoffrey Adair to be actively involved in the file. Geoffrey Adair had skills and experience in keeping with his former counsel, retired Justice Frank Newbould (called in 1969) and Barry Weintraub (called in 1989). Mr. Couper pleads that in breach of contract, Geoffrey Adair was not actively involved in the file and a junior lawyer, Gord McGuire (called in 2010), took a more active role than was agreed to.

[6] The defendants have filed a statement of defence denying all of Mr. Couper’s allegations.

THE LAW

[7] Rule 31.06(1) of the Rules of Civil Procedure provides that a person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action.

[8] Rule 29.2.03 sets out the proportionality factors applicable both to oral and documentary discovery. Rule 29.2.03(1) provides that in making a determination as to whether a party must answer a question or produce a document, the court shall consider: whether, (a) the time required by the party to answer the question or produce the document would be unreasonable; (b) the associated expense would be unjustified; (c) requiring the party to answer the question or produce the document would cause him or her undue prejudice; (d) the orderly progress of the action would be unduly interfered with; and, (e) the information or document is readily available to the requesting party from another source.

[9] The parties agree on the applicable law. Both parties rely on the oft-cited decision in Ontario v Rothmans Inc., 2011 ONSC 2504 as well as Asharzadeh Estate v Amin, 2019 ONSC 1024. At paragraph 14 of that decision, Master McGraw (as his title then was) summarized the law as follows:

14 Relevance, the scope of discovery and proportionality were canvassed comprehensively by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917. Discovery questions must be relevant to the issues as defined by the pleadings such that they must have probative value and adequately contribute to the determination of the truth or falsity of a material fact. Overbroad and speculative discovery and "fishing expeditions" are not permitted (Rothmans at paras. 129 and 154-157).

ANALYSIS

Questions withdrawn and on consent

[10] By the time the motion was heard, the parties narrowed the questions in issue down to 15. During the course of the hearing Mr. Couper withdrew two questions: question 433, page 191 and question 1661, pages 676 to 677.

[11] During the course of the hearing the parties came to an agreement that three questions would be answered in a revised form as follows:

a. Question 188-191, pages 79-80. On consent, Mr. Adair will advise what the relationship is between Adair Barristers LLP and Adair Goldblatt Bieber LLP.

b. Question 1053-1056, pages 430-432. On consent, Mr. Adair will review the transcript of Mr. Frankel and advise whether Mr. Adair put the theory to him.

c. Question 1426, page 586. On consent, Mr. Adair will answer the question why he did not put into evidence the documents referred to in paragraphs 148 to 152 of the Pre-Trial Conference Memorandum, being Tabs 28, 84, and 85.

[12] This left 11 disputed questioned which I will now deal with in the order in which the parties dealt with them.

Question regarding review of underlying trial evidence

Question 1646, page 666

[13] This question asks the defendants to respond to paragraph 38 of the plaintiffs’ Amended Request to Admit #3. Paragraph 38 asks the defendants to admit that they unilaterally decided not to put certain evidence before the court in the underlying action that would have “contributed to the impeachment of” the defence witnesses in that action. Paragraph 38 runs to approximately eight pages. The question further asks that if the evidence was put before the witness, to specify which witness. The defendants’ response is that the transcripts of evidence from the trial speak for themselves. Mr. Couper contends that this is not sufficient.

[14] The defendants submit that it is impossible to respond because each of the subparagraphs in paragraph 38 is a mix of facts, evidence and arguments. Paragraph 38 does not list discrete items of evidence and then ask the defendants to agree that this evidence was not put before the court. It is impossible to extricate the evidence from the arguments in the paragraph.

[15] Further, the defendants submit that the amount of work required is not proportionate. Even if one could extricate the evidence, to answer the question would require the defendants combing through the trial transcripts of a four week trial.

[16] I agree with the defendants that the request as framed is difficult if not impossible to answer and is disproportionate. The plaintiffs have access to the trial transcripts and they are able to determine for themselves whether or not certain evidence was put before the trial judge. This question need not be answered.

Question 1671, pages 685-686

[17] This question asks whether the facts and evidence relied upon in paragraphs 135 to 136 of the PTC Memorandum were put in as evidence or put to witnesses at trial, and if not, explain why the evidence was not put to the witnesses.

[18] The answer provided by the defendants is that the transcripts speak for themselves and that to the extent that a specific fact or document was not introduced at trial or put to a specific witness at trial, such decision was made by Mr. Adair in the exercise of his professional judgment and consistent with his strategic view of how to approach the litigation. Further they submit that the request is overbroad and disproportionate.

[19] Paragraphs 135 and 136 of the PTC Memorandum fall under the heading, “Defendants’ Denials of Performance Lack Credibility.” The paragraphs contain a number of statements about the evidence and facts in the case. Paragraph 136 contains a number of subparagraphs Each of the subparagraphs in paragraph 136 refers to tabbed evidence, (email exchanges) and discovery transcript excerpts (questions 396-397, 448-451, 478 and 480-483).

[20] I agree with the defendant that it would very onerous to extricate each fact and piece of evidence from paragraphs 135 and 136 and then comb through the trial transcripts to see if that fact / piece of evidence was introduced at trial. It would not be proportionate and as noted above, Mr. Couper is equally able to review the trial transcripts to see whether or not the important evidence from his perspective was put before the court. In oral argument, Mr. Couper submitted the defendants failed to put key evidence before the court at trial so what he is really looking for is for the defendants to confirm that the evidence was not put before the court. However, that process would require the defendants to scour the trial transcripts looking for references to evidence that Mr. Couper does not believe is there. Mr. Couper is in the same position to do this as the defendants are. This part of the question need not be answered.

[21] However, the question asks not just whether or not the facts and evidence relied upon in paragraphs 135 to 136 were put in as evidence or put to the witnesses at trial, but also asks if not, why not. There could be a number of reasons for counsel not tendering a piece of evidence at trial, for example, the evidence was irrelevant, it was duplicative, there was better evidence on a point, the evidence hurt the case more than it helped the case, the client instructed the lawyer not to tender the evidence, etc. As noted above, these paragraphs contain specific references to tabbed evidence attached to the PTC Memorandum. Paragraphs 135 to 136 refer to Tabs 62 to 66 and a discrete list of discovery questions from the underlying action all on one topic. For Mr. Adair to answer whether these 5 tabs and discovery answers were put into evidence and if not, why not, is a discrete and manageable task that relates to the plaintiffs’ claim that the defendants failed to lead key evidence at trial. This narrowed form of the question shall be answered. The generic answer: “To the extent a specific fact or document was not introduced at trial or put to a specific witness at trial, such decision was made by Mr. Adair in the exercise of his professional judgment and consistent with his strategic view of how to approach the litigation” is not a sufficient answer.

Question 1674, pages 686 - 689

[22] This question is similar to question 1671. It asks for Mr. Adair to review the trial transcripts to identify whether the facts and evidence referred to paragraphs 148 to 176 in portions of the PTC Memorandum were introduced into evidence, and if not, why not. For reasons given above, the question need not be answered.

[23] However, I am prepared to order that a narrower version of the question be answered on the same basis as question 1671. There are limited number documents referred to by tab number in those paragraphs and one selection of the defendant’s discovery transcript. Although there are more documents than with respect to question 1671, the task of answering the narrowed questions is not unduly onerous or disproportionate. The issue of whether and why the defendants failed to introduce certain evidence at the trial is central to the plaintiffs’ case. Mr. Adair shall answer whether the documents referred to by tab number in paragraphs 153 to 176 of the PTC Memorandum and discovery evidence referenced by question number were introduced into evidence at trial and if not, why not. (The defendants have agreed to answer this question vis a vis paragraphs 148-152 of the PTC Memorandum in regards to question 1426.)

Question 1660, page 676

[24] This question is similar to questions 1671 and 1674. In an August 21, 2014 email to Mr. Adair, Mr. Couper identified the best evidence on a particular point as the evidence referred to in paragraphs 83 to 104 and 133 to 136 of the PTC Memorandum. For the same reasons, I order that Mr. Adair answer a narrower version of the question posed. Mr. Adair shall answer whether the documents referred to by tab number and the discovery transcript references referred in paragraphs 83 to 104 and 133 - 134 were put into evidence at trial, and if not, why not. (I have already ruled that the defendants shall answer vis a vis paragraphs 135 – 136 in connection with question 1671.) The generic answer is not a sufficient answer.

Question 903 – 908, pages 370-374

[25] This question asks Mr. Adair to identify documents that would be privileged in Schedule A.2 in the fourth supplementary affidavit of documents delivered by the defendants in the underlying action. The defendants produced the documents listed in Schedule A.2, stating that privileged was waived. This is one volume of documents out of an 11-volume affidavit of documents. There are about 70 documents listed in Schedule A.2. As I understand his position, Mr. Couper says that this is relevant to his position that at trial Mr. Adair was negligent when he did not stand up in court and correct the defendants’ counsel when he said that the defendants were waiving privilege over 11 volumes of documents when in reality they were only waiving privilege over one volume.

[26] I agree with the defendants that whether or not a valid claim for privilege could have been asserted by the defendants over these documents is not relevant. The privilege issue for these documents was never litigated as they were produced by the defendants in the underlying trial. In addition, the request to do a privilege analysis over 70 documents is unduly onerous and not proportionate. The question need not be answered.

Question 1690, pages 696 - 698

[27] This question asks the defendants to review a chart prepared by Mr. Couper and attached to his Request to Admit #5 and confirm that it is accurate. It is a 24-page chart that lists approximately 700 documents. For each of nine witnesses the chart indicates whether or not the document was put to the witness in chief, in cross-examination and re-examination. The question is for the defendants to advise whether Mr. Couper has correctly populated the chart by reviewing the trial transcripts. The defendants had refused to undertake this exercise when Request to Admit #5 was delivered to them. They delivered a blanket denial.

[28] Mr. Couper submits that at issue in the action is what evidence was put before the various witnesses and what evidence that was not put before the witnesses that should have been. He submits that the chart will facilitate efficient questioning at the trial in this action.

[29] The defendants responded to a similar, earlier version of the chart in February 2021 when they responded to Request to Admit #4. The defendants submit that they have been co-operative and reasonable in responding to four requests to admit. They argue that the request is disproportionate and would require them to go through all of the trial transcripts to verify the accuracy of the list of all the documents entered into evidence at trial. The defendants say that the there approximately 17,064 entries in the chart. The plaintiffs in their factum state that they spent 200 hours in creating the chart which underscores the enormity of the task.

[30] I agree that the request for the defendants to spend many, many hours reviewing the plaintiffs’ chart to verify its accuracy is disproportionate and unnecessary. The question need not be answered.

Questions regarding the experience of counsel

Question 39-41, pages 81 – 83

[31] This question asks Mr. Adair to provide a copy of the statement of claim, defence and case decision of each action that he took to trial prior to signing the retainer agreement with Mr. Couper on April 23, 2013.

[32] Mr. Couper submits that this question is relevant to his pleading that the defendants were in breach of contract with respect to the staffing of the file. He says that contrary to their agreement, Geoffrey Adair was not significantly involved in the file and the junior lawyer, Mr. McGuire, took a more active role than was agreed.

[33] Mr. Norwick submits that the question need not be answered because there is no allegation that Mr. Adair represented his experience and thus the request is not relevant. In addition, he argues that the documents requested are public documents that Mr. Couper can access. Further, the request is disproportionate.

[34] I agree that the question is not relevant. The thrust of Mr. Couper’s pleading and oral argument is that he was promised that Geoffrey Adair, who is more senior than Mr. Adair, would be actively involved in the file, but was not. In his pleading and in his submissions he refers to Mr. Adair being “only” 36 years old at around the time the retainer was entered into. At one point in his submissions he referred to Mr. Adair and the junior lawyer as “young kids”. Moreover, the information is public. Mr. Couper is familiar with the legal process. His factum refers to caselaw and thus Mr. Couper is presumably able to obtain a list of Mr. Adair’s reported decisions if he feels it is necessary and contain obtain the pleadings from the courts. The question need not be answered.

Question 84-85, pages 41 - 42

[35] This question asks the defendants to have Mr. McGuire provide a detailed outline of all court experience as at April 23, 2013, including involvement in trials. Mr. Couper does not allege that Mr. McGuire’s experience was misrepresented. His complaint is that this junior counsel (who was a three year call at the time of the trial) did more work on the file than was agreed. This question need not be answered as it is not relevant.

Questions related to how Mr. Adair was paid

Question 192, page 84 - 85

[36] Mr. Couper asked two questions on this topic that were refused, both identified in the transcript as question 192. The two questions are: “So Mr. Adair, when you were with Adair Barristers LLP, were you paid into a corporation or were you paid personally?” and “Was there a change in the way he was paid between Adair Barristers and Adair Goldblatt –"

[37] Mr. Couper submits that these questions are relevant as he says need to determine whether Mr. Adair’s professional corporation, if it exists, should be a party. However, Mr. Couper did not ask whether Mr. Adair had a professional corporation.

[38] Mr. Couper also submits that this is relevant to paragraph 8 of the defence where it is pleaded that AGB never represented the plaintiffs and that it was formed after the retainer by Couper had been terminated. Therefore, the defendants submit that there is no cause of action against AGB and the action against it should be dismissed. The defence admits that Mr. Adair and AB were retained by Mr. Couper.

[39] The plaintiffs’ factum suggests that there is a contradiction between pleading the action against AGB should be dismissed because it never acted for the plaintiffs and the defendants providing AGB’s insurance policy pursuant to Rule 30.02(3). In response, the defendants argue that there is no contradiction because the AGB policy is a “claims made” policy and was in place when the claim was reported to LawPRO by the insured (Mr. Adair).

[40] The defendants submit that the questions are irrelevant in the action and are judgment debtor type questions.

[41] That the plaintiffs’ concern is on the collection of a potential judgment is borne out by the plaintiffs noting in their factum that there is no coverage for punitive, exemplary or aggravated damages or for return of funds paid. These questions need not be answered.

CONSENT ORDER FOR THE AMENDMENT OF PLEADINGS

[42] The parties have reached agreement on the amendment of pleadings as follows:

a) The plaintiffs have leave to amend the Second Fresh As Amended Statement of Claim amended on February 17, 2022 in the form attached as Tab 2 to Exhibit AA of the affidavit of Mark Couper sworn May 4, 2022.

b) The defendants shall be entitled to examined Mr. Couper for discovery on the amendments for two hours on or before June 30, 2023.

c) The plaintiffs shall pay the sum of $2,500 in costs to the defendants within 30 days.

COSTS

[43] The parties have both filed cost outlines. I would encourage the parties to agree on an appropriate costs disposition in light of the divided success on the motion. However, if the parties do not agree and cannot resolve costs, they may each submit costs submissions limited to 3 pages by August 5, 2022. Thereafter they may deliver a 2 page responding submission by August 19, 2022. Submissions should be emailed to my Assistant Trial Coordinator and uploaded to CaseLines.

DISPOSITION

[44] An order shall issue in accordance with these reasons. The parties may submit an agreed upon order to me through my Assistant Trial Coordinator. If there is any dispute regarding the form of order, the parties may arrange a case conference through my Assistant Trial Coordinator.

L. La Horey, A.J.

Date: July 15, 2022