CITATION: Napoli Shkolnik Canada v. KOT Law Professional Corporation, 2025 ONSC 643

COURT FILE NO.: CV-24-00728634

DATE: 20250129

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: NAPOLI SHKOLNIK CANADA and NAPOLI SHKOLNIK PLLC, Plaintiffs

• AND -

KoT LAW PROFESSIONAL CORPORATION and CASEY R. CHURKO, Defendants

BEFORE: Justice Linda Shin

COUNSEL: Eric Brousseau, Viktor Nikolov and Eric Block, counsel for the Plaintiffs

Casey Churko, self-represented Defendants

HEARD: November 26 and 28, 2024

ENDORSEMENT

1The plaintiff Napoli Shkolnik Canada (“NS Canada”) is a law firm formed on October 2, 2019 by way of an interjurisdictional partnership agreement (the “Partnership Agreement”) between three law firms. The three partners, with their individual agents noted, are:

(a) The plaintiff Napoli Shkolnik PLLC (“NS PLLC”) is an American corporation. Chris Schnieders is NS PLLC’s agent and swore an affidavit and was cross-examined on this motion.

(b) McIntyre Law P.C. is an American corporation (“McIntyre”). Mario D’Angelo is McIntyre’s agent. McIntyre is not a party in these proceedings but is fully supportive of the named plaintiffs.

(c) The defendant KoT Law Professional Corporation (“KoT”) is a Canadian corporation. The defendant Casey Churko is the sole director, shareholder and officer of KoT. Mr. Churko is KoT’s agent and swore an affidavit and was cross-examined on this motion.

2NS Canada was formed to litigate class actions with cross-border elements, particular those that the American partners have, are or would litigate in the United States. A dispute has arisen between the partners over the alleged misconduct of Mr. Churko which has led to this action and this motion.

3On this motion, the plaintiffs seek the following relief reproduced from the amended notice of motion dated October 22, 2024:¹

Declaratory and Mandatory Injunctive Relief

(c) a declaration that KoT has withdrawn as a partner from Napoli Shkolnik Canada (“NS Canada”) under Art. 16 of the Interjurisdictional Law Partnership Agreement dated October 2, 2019 (“Partnership Agreement”) which governs the relationship between NS Canada’s partners;

(d) in the alternative, an order under s. 35 of the Partnerships Act, R.S.O. 1990, c. P.5 (“Act”) dissolving NS Canada as a result of KoT’s and Churko’s conduct;

(e) an order that the Defendants immediately cease holding themselves out as a partner in, or agent of, NS Canada, including, without limitation, by ceasing to use NS Canada letterhead and email, by ceasing to represent to actual and potential NS Canada clients, opposing counsel, and members of the judiciary that they are a partner in NS Canada, and by ceasing to take any other action that by any other means identifies them as a partner in NS Canada;

Collection of Electronic Data & Appointment of an Independent Supervising Solicitor

(f) an order requiring the Defendants to surrender all electronic devices used by either of them to conduct business on behalf of themselves or NS Canada (the “Electronic Devices”) to a third party for forensic imaging and examination;

(g) an order appointing Edward Marrocco of Stockwoods LLP as the Independent Supervising Solicitor (“ISS”) to oversee the collection and production of documents from the Electronic Devices pursuant to the protocol in the draft ISS order appended as Schedule “A” to this Notice of Motion (“ISS Order”);

(h) an order requiring the Defendants to produce to the ISS all physical documents in their power, possession or control relating to or arising out of the Defendants’ role with NS Canada (the “Physical Documents”) to be dealt with according to the ISS Order;

(i) an order requiring KoT to produce to the ISS a record of all transactions within KoT’s trust account for the period from October 2, 2019, to the present;

Miscellaneous

(j) the costs of this motion on a substantial indemnity basis; and

(k) such other relief as to this Court may seem just.

4The plaintiffs commenced this action by notice of action issued on October 1, 2024.² Of note, all the relief sought on this motion is also sought in the notice of action. The allegations made on this motion are the same as those in the notice of action. The relief sought in paragraph 1 of the notice of action is reproduced below with the paragraphs containing the same relief on this motion underlined:

(a) A declaration that the defendant, KoT Law Professional Corporation (“KoT”), has withdrawn as a partner from Napoli Shkolnik Canada (“NS Canada”) under Art. 16 of the Interjurisdictional Law Partnership Agreement dated October 2, 2019 (the “Partnership Agreement”) which governs the relationship between NS Canada’s partners;

(b) In the alternative, an order under s. 35 of the Partnerships Act, R.S.O. 1990, c. P.5 (“Act”) dissolving NS Canada as a result of KoT’s and Churko’s conduct;

(c) If dissolution is ordered, a final settlement of accounts in accordance with s. 44 of the Act, including an accounting in accordance with the Partnership Agreement and under ss. 30 and31 of the Act for private profits and competition by the Defendants;

(d) Damages in an amount to be ascertained for breach of trust, breach of fiduciary duty, deceit, and breach of the Partnership Agreement, and for unjust enrichment;

(e) An accounting and disgorgement of gains or profits made by the Defendants;

(f) An interim, interlocutory and permanent injunction restraining the Defendants from holding themselves out as a partner in, or agent of, NS Canada, including, without limitation, by ceasing to use NS Canada letterhead and email, by ceasing to represent to actual and potential NS Canada clients, opposing counsel, and members of the judiciary that they are a partner in NS Canada, and by ceasing to take any other action that by any other means identifies them as a partner in NS Canada;

(g) An immediate order requiring the Defendants to surrender all electronic devices used by either of them to conduct business on behalf of themselves or NS Canada (“Electronic Devices”) to a third party for forensic imaging and examination;

(h) An order appointing Edward Marrocco of Stockwoods LLP as the Independent Supervising Solicitor (“ISS”) to oversee the collection and production of documents from the Electronic Devices and Physical Documents (defined below);

(i) An immediate order requiring the Defendants to produce to the ISS all physical documents in their power, possession or control relating to or arising out of the Defendants’ role with NS Canada (the “Physical Documents”);

(j) An immediate order requiring KoT to produce to the ISS a record of all transactions within KoT’s trust account for the period from October 2, 2019, to the present

(k) Pre- and post-judgment interest in accordance with sections 128 and129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended;

(l) The costs of this proceeding; and

(m) Such further and other relief as to this Court may deem just

5It appears the original motion record was delivered immediately after the issuance of the notice of action on October 1, 2024. The original motion record contains a notice of motion dated October 1, 2024, the issued notice of action, and the affidavits of Christopher Schnieders and Clint Docken, both sworn on October 1, 2024.

6The plaintiffs sought a date for this motion on an urgent basis and the parties attended a case conference on October 3, 2024 before Justice J. Dietrich, who set the motion down for a two-hour hearing on October 25, 2024. The motion was later adjourned to November 26, 2024.

7At the hearing of this motion on November 26 and 28, 2024, Mr. Churko advised a notice of intent to defend has been delivered and the defendants planned to deliver their statement of defence and counterclaim that week.

8Pleadings are not closed and the discovery process has yet to begin.

BACKGROUND

9In this action and on this motion, the plaintiffs allege that that Mr. Churko has attempted to surreptitiously enrich himself to the detriment of the American partners and class members³ through his actions in Singh v. Glaxosmithkline Inc. et. al., Alberta Court of King’s Bench (the “Alberta Court”), Court File No. 1201-12838, a class proceeding which is currently ongoing (the “Paxil Class Action”). They allege other misconduct as well.

The Paxil Class Action

10The Paxil Class Action was commenced in 2012 by the proposed representative plaintiffs Fiona Singh and Muzaffar Hussain by his litigation representative Fiona Singh. The original counsel of record for the proposed representative plaintiffs was Merchant Law. Mr. Churko worked at Merchant Law and was involved in the Paxil Class Action. The American partners provided litigation assistance to plaintiffs’ counsel based on their experience in litigating similar proceedings in the United States between 2007 and 2018. Mr. Churko left Merchant Law in 2019 and took the Paxil Class Action with him. Mr. Schnieders and NS PLLC continued to provide litigation assistance.

11Ms. Singh served notices of change of counsel appointing Mr. Churko and Clint Docken as counsel in 2019. At that time, Mr. Docken practiced out of Guardian Law. Merchant Law challenged the change of counsel and who the proposed representative plaintiffs should be. In April 2021, Rooke J. ordered that Ms. Singh could remain the proposed representative plaintiff with her counsel being Mr. Churko and Mr. Docken.⁴ In the course of that litigation, Mr. Churko and Mr. Docken provided an undertaking to protect all fair and reasonable fees and disbursements of Merchant Law if Ms. Singh is successful at the end of the action.

12On the motion before me, the plaintiffs claim that when NS Canada was formed with KoT/Mr. Churko on October 2, 2019 the Paxil Class Action became “authorized litigation” under the Partnership Agreement. Mr. Docken joined NS Canada as counsel on April 1, 2022 and he transferred his files including the Paxil Class Action to NS Canada after Ms. Singh signed an authorization for the transfer.⁵

13The Paxil Class Action was certified by order of Rooke J. on November 17, 2022 (the “Certification Order”).⁶

The Paxil Class Action Settlement, Allegations of Misconduct and the Plaintiffs’ Position

14In June 2024, the Alberta Court was advised that a settlement in principle had been reached. Both prior to and after that date, drafts of a settlement agreement were circulated among counsel. Between October 2023 and September 3, 2024, the draft settlement agreements circulated included a “Class Counsel Fee” of $500,000, separate and apart from lawyer’s fees. The American partners understood that the $500,000 would be sufficient to satisfy the undertaking to pay Merchant Law’s fair and reasonable fees and disbursements.

15The plaintiffs’ evidence is that the last draft of the settlement agreement NS Canada’s American partners and Mr. Docken saw and consented to was the September 3, 2024 draft entitled “Paxil and Paxil CR National Class Action Settlement Agreement” (the “September 3, 2024 Draft Settlement Agreement”) which contains the following:

1.1 For the purposes of this Settlement Agreement, including its recitals and schedules, the following definitions apply:

(m) “Class Counsel” means Clint Docken, K.C. and Casey R. Churko.

(o) “Class Counsel Fee” is CDN $500,000, separate and apart from Lawyer’s Fees.

8.5 Notwithstanding any other provision of this Settlement Agreement, the aggregate amount of the Class Counsel Fee and Lawyer’s Fees shall not exceed 35% of the Settlement Fund plus interest thereon, and the amount of the Class Counsel Fee shall not be less nor more than $500,000.

According to the plaintiffs, these provisions are consistent with the previous drafts of the settlement agreement.

16A settlement approval hearing before the Alberta Court was scheduled for September 24, 2024. Between the September 3, 2024 and the settlement approval hearing, the American partners repeatedly sought information from Mr. Churko, yet no documents or answers were provided.

17Mr. Schneiders attests to a history of Mr. Churko refusing to save work product or other documents to NS Canada’s server beginning in October 2023, despite repeated requests. This led to a meeting between the three partners in Toronto on September 10, 2024. What occurred at that meeting and whether Mr. Churko provided any documents as a result is disputed between the parties.

18Between September 10 and 20, 2024, the American partners continued their requests for files and the Paxil Class Action settlement agreement, none of which were provided. By September 20th, as set out below, the settlement agreement had been changed and signed without the knowledge of the American partners. Shortly before the September 24, 2024 hearing, the American partners searched Mr. Churko’s NS Canada emails and discovered the final form of the settlement agreement submitted to the Alberta Court.

19The plaintiffs allege Mr. Churko unilaterally changed the settlement agreement without the knowledge or consent of his American partners or Mr. Docken to increase the Class Counsel Fee from $500,000 to $2,000,000 and direct funds away from NS Canada. The final settlement agreement filed in the Alberta Court for the September 24, 2024 hearing, is entitled “Amended Paxil and Paxil CR National Class Action Settlement Agreement” and bears the signatures of Mr. Churko, Mr. Merchant and counsel for the defendants dated September 18, 2024 (the “September 18, 2024 Amended Settlement Agreement”).⁷

20The changes from the draft agreements contained in the September 18, 2024 Amended Settlement Agreement include:

1.1 For the purposes of this Settlement Agreement, including its recitals and schedules, the following definitions apply:

(m) “Class Counsel” means

(i) Casey R. Churko, practicing through KoT Law Professional Corporation; and

(ii) Clint Docken, K.C., practicing through Clint Docken Professional Corporation.

(o) “Class Counsel Fees” is CDN $2,000,000, separate and apart from Lawyers’ Fees, to be paid as follows:

(i) $850,000, to be paid to KoT Law Professional Corporation;

(ii) $50,000, to be paid to Clint Docken Professional Corporation; and

(iii) $1,100,000, to be paid to Former Class Counsel in full and final satisfaction of the undertaking that the Honourable Associate Chief Justice J.D. Rooke referenced at ¶138 of Singh v Glaxosmithkline Inc., 2021 ABQB 316.

8.5 Notwithstanding any other provision of this Settlement Agreement, the aggregate amount of the Class Counsel Fees and Lawyers’ Fees (including disbursements and taxes on Lawyers’ Fees but not Class Counsel Fees) shall not exceed 33.33% of the Settlement Fund plus interest thereon, and the amount of the Class Counsel Fees shall not be less nor more than $2,000,000 plus GST.

21While at the September 24, 2024 settlement approval hearing, Mr. Docken first learned of the changes to the settlement agreement⁸ and sought an adjournment. The court adjourned the fees portion of the hearing. NS Canada, Mr. Churko and Merchant Law have filed materials in relation to the legal fees issue and I understand the legal fees issue is scheduled to be heard on December 6, 2024 and/or January 27, 2025.

22The plaintiffs assert that Mr. Churko’s changes to the settlement agreement are in breach of the Partnership Agreement which provides:

16. Unless instructed by a Client under the terms of retainer agreements, or unless otherwise required by law, the Interjurisdictional Law Firm shall not make nor accept any offers to Settle any Claims without the written approval of each Partner, and any such settlements shall receive any requisite judicial approval.

17. Legal Fees generated by the Interjurisdictional Law Firm from Authorized Litigation will be distributed as they are received in the following order of priority.

(a) All Disbursements incurred by any Partner under this Agreement that have not been recovered from Clients or a Defendant respecting Authorized Litigation shall be repaid in full.

(b) Any remaining Legal Fees shall be distributed 10% to the Canadian Partner and 90% to the American Partners, except that all Draws received prior, during, or after the execution of this agreement by the Canadian Partner must be paid back in their entirety from his share of any fees before the amount remaining, if any, is distributed to the Canadian Partner.

23The plaintiffs discovered other alleged deceptive conduct by Mr. Churko. They claim his alleged misconduct in relation to the Paxil Class Action reflects a pattern of self-dealing and/or breaches of fiduciary duty Mr. Churko concealed from his NS Canada partners. This includes similarly entering into a partial settlement agreement in a different class action related to the opioids epidemic without his American partners’ knowledge or approval as required by the Partnership Agreement, and again allegedly without his co-counsel’s knowledge.⁹

24On September 27, 2024, prior to this action being commenced, counsel to the plaintiffs wrote to Mr. Churko notifying him that in their view, his conduct fundamentally breached the Partnership Agreement and his conduct could only be construed as a withdrawal from the partnership. They requested that Mr. Churko immediately cease all contact with NS Canada clients, preserve all relevant documents, produce his personal and professional devices for forensic inspection, produce a complete list of all NS Canada matters and repay KoT’s draw in full. Mr. Churko responded the next day, on NS Canada letterhead, denying the allegations, including that he had withdrawn from the partnership and alleging the American partners breached the Partnership Agreement and are the ones who have withdrawn.

25On this motion the plaintiffs assert the only conclusion that can be drawn from the defendants’ conduct is an “unequivocal intention” to no longer be bound by the Partnership Agreement, thus the withdrawal provision therein ought to be applied and the declaration sought be made.

26They also allege ongoing harm to NS Canada and potential harm to clients by Mr. Churko’s conduct and his ongoing failure to share NS Canada client files with the firm, all of which requires immediate injunctive relief. The injunctive relief being that the defendants cease holding themselves out as affiliated with NS Canada, and an order requiring Mr. Churko to immediately provide his personal electronic devices, NS Canada documents and KoT’s trust account records to a court-appointed ISS.

The Defendants’ Position

27Mr. Churko vigorously contests the allegations made by the plaintiffs. He asserts he continues to be a partner of NS Canada and denies withdrawing from the partnership or having any intention to withdraw. He also denies any deceptive conduct or that he has done anything to the detriment of any client or NS Canada.

28Mr. Churko claims it is the American partners who have withdrawn from the partnership by their improper conduct, or their conduct amounts to an attempt to wrongfully expel Mr. Churko /KoT from the partnership. The plaintiffs deny these assertions. As noted, Mr. Churko intends to make a counterclaim.

29On the evidence before me, it is not clear if Mr. Churko ultimately agrees that the Paxil Class Action is authorized litigation under the Partnership Agreement and/or that NS Canada is the law firm of record or has any involvement in the litigation. Mr. Churko’s evidence and submissions are inconsistent or unclear in this regard. On the one hand Mr. Churko asserts it is arguable whether it is authorized litigation under the Partnership Agreement and in any event, the American partners withdrew from the Partnership before September 2024 and are therefore not entitled to any legal fees. On the other hand, Mr. Churko asserts that he remains a partner in NS Canada and what he does, the firm does and thus his approval of the settlement is NS Canada’s approval of it. In addition, evidence filed on this motion includes documents filed in Alberta Court which bears the NS Canada name and identifies NS Canada as the law firm for class counsel to the plaintiffs with Mr. Docken and Mr. Churko being the individual lawyers at NS Canada. These documents include the September 18, 2024 Amended Settlement Agreement and appendices; the 2022 Certification Order; and Ms. Singh’s September 11, 2024 affidavit filed in support of the settlement approval hearing (which contains mention of NS Canada and the American partners’ participation, expenditure of time, and disbursements).

30Regardless, the crux of Mr. Churko’s evidence and argument is that s. 16 of the Partnership Agreement did not require him to advise or seek the consent of his partners to the changes in the settlement agreement because Ms. Singh authorized and instructed Mr. Churko to sign the final form of the settlement agreement. Mr. Churko points to Ms. Singh’s September 11, 2024 affidavit as proof. In the body of that affidavit, Ms. Singh mentions the $2,000,000 Class Counsel Fee and attaches the settlement agreement signed on September 11, 2024.¹⁰

31The plaintiffs question whether Ms. Singh gave those instruction as Mr. Churko has failed to provide any details substantiating Ms. Singh’s purported authorization despite multiple requests and questions on cross-examination. Mr. Churko has not provided any explanation as to why the settlement agreement was changed to add KoT and Clint Docken Professional Corporation to the definition of Class Counsel or why $850,000 of the Class Counsel fee be directed to KoT.

32Mr. Churko’s evidence and argument regarding the opioids class action is similar – there was no wrongdoing as the clients authorized the partial settlement agreement Mr. Churko entered into. In addition, Mr. Fourie is co-counsel in a different opioids proceeding, not the Alberta one involving the settlement agreement.

33Lastly, Mr. Churko’s evidence and position on the client files and other NS Canada information is three-fold: (1) since he is a partner in NS Canada, any client files he has are being held by NS Canada; (2) he will comply with any client direction to transfer files; and (3) in any event, he has in fact provided requested client files to the American partners.

ANALYSIS

34The Partnership Agreement provides:

25. Any Partner may withdraw from this Agreement for any reason, in which case such Partner

(a) will be discharged from any further obligations hereunder,

(b) will have no right of recovery against the remaining Partners for any Disbursements previously expended in Authorized Litigation, and

(c) shall surrender its interest in the distribution of Legal Fees, and such interest shall thereafter be equally distributed among the remaining Partners.

There are no provisions in the agreement related to dissolution of the partnership or expulsion of a partner.

35The relevant sections of the Partnership Act are:

25 No majority of the partners can expel any partner unless a power to do so has been conferred by express agreement between the partners.

32 Subject to any agreement between the partners, a partnership is dissolved,

(c) if entered into for an undefined time, by a partner giving notice to the other or others of his or her intention to dissolve the partnership, in which case the partnership is dissolved as from the date mentioned in the notice as the date of dissolution, or, if no date is so mentioned, as from the date of the communication of the notice.

35 (1) On application by a partner, the court may order a dissolution of the partnership,

(a) when a partner is found to be incapable as defined in the Substitute Decisions Act, 1992;

(b) when a partner, other than the partner suing, becomes in any other way permanently incapable of performing the partner’s part of the partnership contract;

(c) when a partner, other than the partner suing, has been guilty of such conduct as, in the opinion of the court, regard being had to the nature of the business, is calculated to prejudicially affect the carrying on of the business;

(d) when a partner, other than the partner suing, wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself or herself in matters relating to the partnership business that it is not reasonably practicable for the other partner or partners to carry on the business in partnership with the partner;

(e) when the business of the partnership can only be carried on at a loss; or

(f) when in any case circumstances have arisen that in the opinion of the court render it just and equitable that the partnership be dissolved.

36I am concerned with the prematurity of seeking final relief on a motion at this very early stage of the proceedings, in particular where the pleadings are not yet closed and the defendants intend to deliver a counterclaim that includes allegations that the American partners have withdrawn from the partnership by their conduct and/or wrongfully expelled the defendants from the partnership. I am also concerned about the potential for inconsistent findings with the Alberta Court decision on legal costs or fees which is occurring at the same time as this motion is being decided. The issue before the Alberta Court should properly be determined before the relief sought now.

37The plaintiffs are not seeking summary judgment under Rule 20 of Rules of Civil Procedure, O. Reg. 575/07, s. 6(1). Indeed, they are not entitled to seek summary judgment as pleadings are not closed: r. 20.01(1). Yet, the fundamental nature of this motion is that the plaintiffs are seeking a final judgment on substantive claims made in their action, i.e., summary judgment or partial summary judgment. Indeed, the declaratory and injunctive relief they seek here would determine the course of the remaining relief sought in this action.

38Regardless, there are too many material facts in dispute and genuine issues that require a trial. Whether there was a withdrawal by conduct, if so by whom, whether the test for dissolution is met and whether documents are being wrongfully held are all matters that are hotly contested and the parties have dramatically different accounts of the facts.

39It is important to note the global amounts of legal costs and the appropriate allocation of the legal fees amongst counsel in the Paxil Class Action settlement will be determined by the Alberta Court. The plaintiffs and Mr. Churko are participating in those proceedings and the plaintiffs have raised the alleged misconduct by Mr. Churko. The Alberta Court’s decision and findings will be relevant in these proceedings. For example, leaving aside any potential findings regarding whether there was misconduct, that court’s determination of the appropriate allocation of legal fees amongst counsel will likely be relevant to whether Mr. Churko attempted to improperly divert funds away from NS Canada.

40On the evidence before me, Mr. Churko’s conduct does raise concerns regarding his potential breach of fiduciary duties to his partners and his potential lack of transparency regarding client files. He may be attempting to diverting legal fees away from his NS Canada partners. For example, by directing $850,000 of the Class Counsel Fee to KoT, it appears fees could be diverted from NS Canada. Moreover, it is suspicious that he never told his partners or his co-counsel Mr. Docken of the changes to the Class Counsel and Class Counsel Fee definitions. This however does not permit the court to make a declaration that Mr. Churko has withdrawn from the partnership or order a dissolution in a summary fashion on a motion. The relief requested on this motion are final orders sought in the action and making them would finally determine the bulk of the action.

41An abbreviated proceeding based on a paper record created within two months of the action being commenced and occurring prior to pleadings being closed and the relevant issues being delineated is not sufficient. A full record including viva voce evidence and full argument at a trial is required.

42Section 101 of the Court of Justice Act, R.S.O. 1990, c. C.43, and r. 40.01 permit interlocutory injunctions and mandatory orders by way of a motion. The injunctive relief sought on this motion is not framed as being interlocutory in nature, but final orders. Regardless, without a declaration of withdrawal or a dissolution, injunctive relief that requires Mr. Churko to cease holding himself out as a partner cannot be properly made. Nor is it appropriate to order the extraordinary relief that Mr. Churko to turn over his personal electronic devices or that he produce other documents, including KoT’s trust account records, to a court-appointed ISS at this stage of the proceedings. The court expects that Mr. Churko, particularly since he is an officer of the court, to comply with his obligations to preserve and produce relevant documents as required by the Rules of Civil Procedure and to comply with the undertaking given to the court, which is described below.

43I appreciate that the plaintiffs believe there is urgency to the relief they request as Mr. Churko’s continued conduct in holding himself out as a partner and “holding hostage” documents, including client files, may have a detrimental impact not only on NS Canada but also on clients. This however does not permit the court to short circuit proper litigation processes to grant the relief requested. Again, Mr. Churko vigorously contests that he is holding back any information improperly and asserts that he remains a partner and that it is the American partners who have withdrawn by conduct.

44Moreover, while there are serious issues to be tried, there is insufficient evidence of irreparable harm to the plaintiffs. The harm they assert is substantially based on Mr. Churko continuing to hold himself out as a partner. The harm therefore assumes that Mr. Churko is not a partner (i.e., that he has withdrawn) which is an issue not yet determined. The documents issue is also, at least in part, premised on Mr. Churko no longer being associated with NS Canada. The balance of convenience does not favour granting what amounts to final injunctions at this stage and on this record.

45As I indicated a trial is required. I urge the parties to agree to a rapid timetable once pleadings close, failing which they ought to book a case conference to set a timetable for this action.

46At a case conference before Justice J. Dietrich on October 3, 2024, Mr. Churko on behalf of both defendants has undertaken to preserve all documents. All parties also indicated their intentions to follow all applicable law society guideline and rules, including with respect to communications with clients. I also note that r. 15.01 requires that KoT be represented by a lawyer. I remind all parties they must comply with the obligations under the Rules of Civil Procedure and the applicable law society guideline and rules, in particular with respect to the preservation and disclosure of documents and communications with clients.

DISPOSITION

47The motion is dismissed.

48I urge the parties to resolve the costs of this motion.

49If they are not able to do so, the defendants may email their costs submission of no more than three double-spaced pages (plus costs outline) to my judicial assistant ade.minassian@ontario.ca on or before February 7, 2025. The plaintiffs may deliver its responding submission of no more than three double-spaced pages on or before February 18, 2025. No reply submissions are to be delivered without leave.

Footnotes

1. 1No changes were made to the relief sought from the original notice of motion dated October 1, 2024.
2. 2The notice of action is contained in the original motion record dated October 1, 2024. It appears no pleadings were included in the subsequent consolidated motion record, supplementary motion record, motion record of the responding parties, compendiums or other materials uploaded on Case Center. I understand that a statement of claim was delivered on October 30, 2024 and assume it contains the same relief sought in the notice of action.
3. 3I note that the September 3, 2024 Draft Settlement Agreement provides that the aggregate amount of the Class Counsel Fee and Lawyer’s Fees shall not exceed 35% of the Settlement Fund and the September 18, 2024 Amended Settlement Agreement contains the same provision except the percentage is 33.3%, inclusive of disbursement and taxes as outlined later in this endorsement.
4. 4Singh v. Glaxosmithkline Inc., 2021 ABQB 316.
5. 5Mr. Docken swore an affidavit filed by the plaintiffs and was cross-examined on this motion. This authorization is exhibit B to Mr. Docken’s affidavit.
6. 6Singh v. Glaxosmithkline Inc., 2022 ABKB 762, 2022 ABQB 762.
7. 7Mr. Churko’s evidence is that the final agreement was in fact signed on September 10 or 11, 2024 by the parties and it was “amended” on September 18, 2024 to accommodate health insurers.
8. 8Mr. Churko’s evidence is that he gave Mr. Docken a copy of the final settlement agreement prior to court and he only opened it when they were in court.
9. 9Philip Fourie asserts that he is Mr. Churko’s co-counsel in the opioids class action and is a partner at Kirkby Fourie in Saskatchewan. Mr. Fourie swore an affidavit filed by the plaintiffs and was cross-examined on this motion. Mr. Churko denies Mr. Fourie is co-counsel in the opioids proceeding at issue.
10. 10The original version of the Settlement Agreement signed on September 11, 2024, which apparently was the first version that contained the changes to Class Counsel and Class Counsel Fees was not included in the materials on this motion.