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Trying to fake a judgment? What were the plaintiffs thinking?

February 1, 2013


[38] I have no hesitation in concluding that an award of full indemnity costs is required in the circumstances of this case. I find that the plaintiffs’ conduct, in faking a judgment of this court, constitutes a scurrilous and fraudulent attack on the administration of justice. The plaintiffs’ actions amount to a contemptuous and reckless disregard for the judicial process and were calculated to obstruct or interfere with the due course of justice in these proceedings. The plaintiffs’ behaviour was “reprehensible, scandalous and outrageous.” Such reckless attacks on the administration of justice clearly constitute conduct requiring chastisement and deterrence.

[39] I find that the defendants are entitled to full indemnity costs, payable by the plaintiffs D’Souza and D’Gama forthwith. Costs are awarded as follows:

Woldanskas $14,974.60

Linton/Jagielski $10,659.35

Gills $14, 617.97

inclusive of disbursements and HST.

[40] The plaintiffs are prohibited from taking any fresh step in these proceedings until these costs have been paid in full.

Master Dash Order

[41] There is a subsidiary issue involving an order of Master Dash on April 26, 2011, obtained without notice, granting leave to the plaintiffs to register a certificate of pending litigation against the Property (the CPL order). No CPL has been registered as yet.

[42] The plaintiffs have refused or been unable to produce the original of Master Dash’s order. The court record apparently contains no original order or endorsed motion record.

[43] It appears that the CPL order of Master Dash may also be a fake.

[44] In any event, it was obtained without notice. The noting in default of the Gills was improper and constituted sharp practice.

[45] In the circumstances, my order shall issue setting aside the CPL order of Master Dash dated April 26, 2011.

Read the decision of Penny J. in John Joseph AKA John D’Souza and Peter D’Gama v. Ritchie James Linton, et al. 2013 ONSC 70  here.

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Posted in Civil Litigation, civil procedure, fair trial, fraud, fundamental justice, Judge, judging, judgments, Ontario, Ontario Rules of Civil Procedure, paralegal | 2 Comments »

Emir Crowne et al. “‘Fully Appreciating’ the Ontario Court of Appeal’s Views on the Summary Judgment Rule”

April 13, 2012
Civil Procedure Rules

Civil Procedure Rules (Photo credit: septuagesima)

Emir Crowne (University of Windsor – Faculty of Law), Varoujan Arman (Blaney McMurtry LLP) and Terry Reid (Gardiner Roberts LLP) have posted “‘Fully Appreciating’ the Ontario Court of Appeal’s Views on the Summary Judgment Rule”, Advocates’ Quarterly, Vol. 39, No. 3, February 2012. The article analyzes the five combined appeals heard by the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, which issued guidelines to first instance judges when faced with motions for summary judgment.

Download a pdf copy of the article from SSRN here.

See also my previous post: “Ontario Court of Appeal Introduces New “Full Appreciation” Test for Summary Judgment”

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Posted in Civil Litigation, civil procedure, Ontario, Ontario Court of Appeal, Ontario Rules of Civil Procedure, procedural rights, procedure, Rules of Civil Procedure, summary judgment | Leave a Comment »

Ontario Court of Appeal Introduces New “Full Appreciation” Test for Summary Judgment

December 5, 2011

The Court of Appeal for Ontario has released an important decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 ["Flesch"], which creates a new judicial test for summary judgment: the “full appreciation” test. (more…)

Posted in Civil Litigation, civil procedure, Ontario, Rules of Civil Procedure, summary judgment | 1 Comment »

OBA-Civil Litigation Section Program Series: Your Passport to the New Rules: Hit the Ground Running"

January 1, 2010
On January 1, 2010, fundamental changes to Ontario’s civil justice system took effect (see my earlier post here) including:
  • the Small Claims Court monetary jurisdiction increased from $10,000 to $25,000;
  • the Simplified Procedure monetary jurisdiction increased from $50,000 to $100,000;
  • Oral examinations for discovery are limited to one day unless the parties agree, or the court orders otherwise;
  • A new overriding duty of experts to the court;
  • A general principle of proportionality to save time and reduce costs based upon the amount at stake.
The Ontario Bar Association-Civil Litigation Section is presenting: “Your Passport to the New Rules: Hit the Ground Running”, a series of timely programs to help litigators and their clients navigate through the maze of significant procedural changes.
Did you know?
as of January 1, 2010
- no party shall exceed a total of seven hours of examination, regardless of the number of parties or
other persons to be examined, without leave of the court or consent of the parties? [R.31.05.1]
- Notice of motion (and factum if applicable) must be served and filed at least 7 days before the
hearing date.
- all experts will owe a duty to the Court that prevails over any client obligations? [R. 4.1.01 & R.
53.03(2.1)]
- there will be an increased incentive to early settlement because for cases that proceed to Court the
Court shall make orders proportionate to importance, complexity and amounts in dispute? [CJA
1.04(1.1)]

Here are the program descriptions:
DISCOVERY
The end of endless discovery? “Proportionality” as the new buzz word.
Monday, January 11, 2010 – OBA Conference Centre
5:30 PM – 7:00 PM
Program Chair: Jeff Percival, Ogilvy Renault LLP
Speakers: Stephen Maddex, Lang Michener LLP
Kelly Friedman, Ogilvy Renault LLP
Preparing for and conducting written and oral discovery will be changing significantly on January 1, 2010. The Rules of Civil Procedure will be amended to include requirements for a discovery plan, limitations on the length of an examination for discovery, and a strong focus on ensure that discovery costs and efforts are proportionate to the nature and quantum of the litigation. Are you ready to agree on a discovery plan with opposing counsel? How can you quickly adapt to the new discovery rules? This session will focus on a nuts and bolts guide to Ontario’s new discovery regime:
· What is a discovery plan, anyway?
· How to complete all of your examinations in 7 hours or less.
· How is the definition of what documents must be included in an Affidavit of Documents going to change
MOTIONS
Keeping Ahead of the Curve: Motions, Pre-Trials and Getting to Trial in 2010
Monday January 25, 2010 – OBA Conference Centre
5:30 PM – 7:00 PM
Program Co-Chairs: Brian Bangay, Withrow and Associates (State Farm Claims Litigation Counsel)
Audrey Ramsay, Withrow and Associates (State Farm Claims Litigation Counsel)
Speakers: The Honourable Mr. Justice Paul Perell, Superior Court of Justice
The Honourable Mr. Justice Robert Beaudoin, Superior Court of Justice
Master Joan Haberman, Superior Court of Justice
Lee Akazaki, Gilbertson Davis Emerson LLP
Andrew Gray, Torys LLP
Frank Walwyn, WeirFoulds LLP
The roadmap for bringing summary judgment and other motions is now vastly different. January 1, 2010 brings significant procedural rule amendments and practice directions relating to motions, pre-trial conferences and setting actions down for trial. Avoid being bogged down in a costly procedural quagmire for these steps? This session will focus on a nuts and bolts guide to the road to trial.
• New Summary Judgment Motions
- Is oral evidence necessary to assess credibility?
 – “Mini-Trial” or viva voce subrule 20.04(2.2) motion: defining your endgame
 – All need not be lost: the Rule 20.05 road map after a failed summary judgment motion
 – When the end is already near.
• Pretrial Powers under Clause 50.07(1)(c) which mirror Rule 20.05
- What do the new provisions for costs mean for summary judgment motions or pre-trials?
• New procedural signposts to getting your motions heard?
• What materials must be filed on different types of motion and when?
• What goes into a record for a successful motion
- Factums: what you need to know now
 – Timing and schedule changes – what is served when?
• How will the court deal with adjournment requests under the new regime?
• Views from the Bench
EXPERTS
Duty Calls: The New Role of Experts in the Ontario Civil Justice System
Monday, February 8, 2010 – OBA Conference Centre
5:30 PM – 7:30 PM
Program Chair: Antonin Pribetic, Steinberg Morton Hope & Israel LLP
Speakers: Colin Stevenson, Stevensons LLP
Professor Leonard Brooks, Director, Diploma in Investigative and Forensic
Accounting Program, University of Toronto (Mississauga)
There is a new dawn approaching for experts giving evidence in Ontario civil proceedings. The amendments to Ontario Rules of Civil Procedure relating to an expert’s new overriding duty to the court and modifications to the evidentiary and fact-finding purpose of expert reports will be in force on January 1, 2010. Hear from an experienced litigator on the key procedural changes regarding the role of experts and the impact on litigation strategy, as well as from an accounting expert on the professional and ethical implications of the new Rules.
ADR (A joint presentation with the Alternative Dispute Resolution Section)
ADR/Effective Advocacy in Mediation and Beyond – Under the new Rules
Monday, February 22, 2010 – OBA Conference Centre
5:30 PM – 7:00 PM
Program Co-Chairs: Kathleen Kelly, ADR Chambers
Anne Gottlieb, Mediation At Work Ltd.
Speakers: Lisa Feld, ADR Chambers
Nester Kostyniuk, Kostyniuk & Greenside
Stuart Svonkin, Torys LLP

Appropriate Dispute Resolution – is more than mediation. This final stop in the Civil Litigation Passport Series will equip you to strategically get your client’s case settled and if not settled one step (or more) closer to trial ready.
Learn from expert counsel and mediation specialists on how to strategically use mandatory mediation and other ADR processes to maximize the litigation outcomes for your clients.
• Play by the Rules – Break the Rules
• Know when to hold em – know when to fold em
• Hands off or into the fray
• Using mediation to scope the case – narrow the issues
• Assisting parties to score the goal

All programs will be held at the Ontario Bar Association Conference Centre.

Posted in Ontario, Ontario Bar Association, Passport Series, Rules of Civil Procedure | Leave a Comment »

New Canadian internet defamation case: Henderson v. Pearlman (Ont. SCJ)

September 21, 2009
Canadian internet defamation caselaw continues to develop.

In a recent Ontario decision, Henderson v. Pearlman, 2009 CanLII 43641 (ON. S.C.), Hennessy, J. of the Ontario Superior Court of Justice has granted an Ontario plaintiff summary judgment and a permanent injunction arising from defamatory postings on various American defendants’ websites. The plaintiff owned and operated a fraud awareness website established in May 2000 from Sudbury, Ontario with the URL < http://www.crimes-of-persuasion.com>. He also had published a 432 page book entitled Crimes of Persuasion: Schemes, Scams, Frauds, dealing with telemarketing fraud, investment schemes, and consumer scams. The plaintiff further asserted that he routinely advised law enforcement agency officials and defence lawyers on matters related to consumer and investment fraud.

The plaintiff commenced an internet defamation action in 2005, alleging that the defendants had defamed him through a “program of misinformation on various websites, internet newsgroups and internet fora”, including the following statements:

· that he was career criminal who is wanted by the FBI for endangering the welfare of a minor;
· that he was working with a group of criminals;
· that he lured a minor to a hotel room to do coke;
· that his books were plagiarized material;
· that his consumer fraud awareness website was a scam to lure victims;
· that he was a perverted individual;
· that he wrote nothing but lies;
· that he had a long criminal record;
· that he was an extortionist;
· that he was convicted of shoplifting and selling stolen goods; and
· that Canadian authorities made him take down his website.

The foregoing statements were republished on the internet by the defendants who provided links to other websites (at para. 18-20).

The plaintiff sought summary judgment of his claim and damages for internet defamation. The plaintiff’s defamation claim against ten defendants—seven of which were based in Florida and three in Oregon—was based upon alleged defamatory remarks made about him on various websites. The Oregon defendants’ motion challenging jurisdiction and requesting a stay of proceedings on lack of jurisdiction simpliciter or that Ontario was forum non conveniens was dismissed, as was the Florida defendants attempt to set aside previous order regarding forum, to stay proceeding, and for declaration that Ontario was not most convenient forum.: Henderson v. Pearlman 2006 CanLII 32908 (ON S.C.) . The defendants who were successfully served were either noted in default, or the action against them discontinued.

Hennessy, J. relied upon the leading case in Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 where Blair J.A., by way of introducing his reasons, observed that:

“The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internet is also potentially a medium of virtually limitless international defamation. “

While the plaintiff only sought summary judgment, the court, sua sponte, entertained granting an injunction  based upon the test set out in Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 at para. 49):

· The likelihood of a finding of defamation at trial;

· The words in question must be clearly defamatory and obviously impossible to justify,

· the trial judge’s acceptance of a defence of justification would of necessity have to be set aside as some perverse finding on appeal (at para. 49).

Given that the defendants were noted in default, the court inferred that the plaintiff’s allegations were true (Rule 19.02(1) of the Rules of Civil Procedure), stating:

43 In the absence of any defence and in view of the deemed admissions to all allegations in the Statement of Claim, there is no difficulty in resolving the question of fact once the question of law is determined.

44 To call someone a career criminal and a child molester is clearly and obviously defamatory. These words are repeated, in modified phrases and sentences, throughout the various websites. The descriptions of the plaintiff, noted above, serve to illustrate both these labels. The statements are clearly capable of being defamatory. And in these circumstances, as untrue, baseless attacks on the character and integrity of the plaintiff, they are clearly defamatory in fact. In the absence of any intent to justify, no reasonable jury would find these words anything but defamatory.

45 As Blair J.A. said in Barrick Gold, “[t]he extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truth rarely catches up with a lie” (at para. 32).

46 The allegations and information appearing about the plaintiff on the defendants’ websites, and bulletin boards would tend to lower him in the estimation of right thinking members of society and this information would expose him to contempt. I am satisfied that the statements could not justify a verdict other than this. A jury would not be able to find justification for such statements (Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (1975), 7 O.R. (2d) 261 at page 262).

47 Accordingly, I find the words complained of defamatory.

Citing the Canadian Liberty Net case above, and Robert J. Sharpe, Injunctions and Specific Performance (2nd ed., loose-leaf (Toronto: Canada Law Book) at paras. 5.40 to 5.70.), the court issued a permanent injunction against the defendants, noting:

51 This is an exceptional case which calls for the extraordinary relief of an injunction. The defendants have attempted to avoid service, attempted to move the proceedings to Florida and, when unsuccessful, refused to participate in any way in these proceedings.

52 I am satisfied that on a balance of probabilities, a permanent injunction should be granted to prohibit the defendants from continuing to post these comments. They are clearly defamatory and there is no evidence that the defendants have ever, including until the present time, taken any steps to remove the postings from their website.
…
54 An order enjoining the defendants from continuing to comment about the plaintiff cannot be so broad as to preclude them from exercising their rights to free expression (see Beidas v. Pichler (2008), 238 O.A.C. 103 (Div. Ct.), at paras. 46-47 on this point).

55 Accordingly, I enjoin the defendants from publishing or republishing:

(a) any material in the specified articles;
 

(b) any material derived from those articles;

(c) any material pertaining to, or referencing those articles;

(d) any information relating to the status, lifestyle, personal activities or business of the plaintiff; and

(e) any other information that is defamatory of the plaintiff.

Finally, the plaintiff was awarded general and aggravated damages of $10,000 against each of six of the defendants for their respective involvement in the creation, publication or republication of the libellous statements, with costs submissions reserved to a later date.

Postscript
In November 2007, one of the Florida co-defendants, Ayman Difrawi (personally and on behalf of his company, Internet Solutions Corporation) commenced parallel proceedings in Florida against the Ontario plaintiff and others, alleging conspiracy, defamation, false light invasion of privacy, civil RICO, tortious interference, and trade libel: see the helpful case summary  by the Citizen Media Law Project in Difrawi v. Henderson. 

One of the other Florida co-defendants, Lou Pearlman, is the former talent manager and impresario of 1990s boy bands the Backstreet Boys and *NSYNC, who is now serving (up to) 25 years in a US federal prison after perpetrating one of the largest Ponzi schemes  in U.S. history and subsequently pleading guilty to conspiracy, money laundering, and making false statements during a bankruptcy proceeding.

While internet defamation jurisprudence continues to develop, not all defamatory statements are justiciable. In particular, readers should note that absolute immunity accorded to “judicial proceedings” in defamation law extends to “statements though made falsely and maliciously.” (see: Sauve v. Merovitz). Even a witness who gives perjured testimony is protected from subsequent law suits that are based on perjured testimony or false affidavits. Accordingly, pleading malice and bad faith will likely not withstand a motion to strike pleadings to the extent that the cause of action alleges defamation and is based on “judicial proceedings.” In . Reynolds v. Smith 2007 ONCA 166 (CanLII), (2007), 84 O.R. (3d) 738 at para. 14 (C.A.) (sub nom. Reynolds v. Kingston (City) Police Services Board) the Ontario Court of Appeal recently reaffirmed the immunity of parties and witnesses from subsequent liability arising from their testimony in judicial proceedings, stating at para. 14 that:

“The absolute immunity of parties and witnesses from subsequent liability for their testimony in judicial proceedings developed in early English cases and is well established at common law. Any communication, even perjured testimony, made in the course of a judicial proceeding, cannot serve as the basis for a suit in tort. The rationale for witness immunity, which has become less an evidentiary rule than a rule of substantive law, is that the proper administration of justice requires full and free disclosure from witnesses unhampered by fear of retaliatory lawsuits. See, e.g., Samuel Manu-Tech Inc. v. Redipac Recycling Corp., [1999] O.J. No. 3242, 38 C.P.C. (4th) 297 (C.A.), at paras. 19 and 20.

Antonin I. Pribetic

Posted in civil procedure, communications, evidence, hyperlinking, injunctions, internet defamation, Internet Service Providers, libel, Online Defamation, Ontario | Leave a Comment »

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