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Ontario Courts Tell it Like it Is

A judge-cartoon

Ontario Courts Tell it Like it Is

While reviewing a few Ontario family decisions recently, I noticed that the judges introduced their written reasons with a subtle and judicially-uncharacteristic lament, and in some cases, outright incredulity.

Using phrases like “a family tragedy” or “unhappy story” the judges provide a glimpse of some of the empathy and quiet frustration underlying their otherwise-impartial decisions.

For example, in Zesta Engineering Ltd. v. Cloutier, the court introduced the case this way:

This lawsuit is a case study of the risks and consequences of intertwining business, family, and marital relationships. On its face, this proceeding involves claims for breach of fiduciary duty and misappropriation of corporate assets by departing employees, coupled with counterclaims for wrongful dismissal. Beneath the surface it is the unhappy story of the impact of a marriage breakdown on a successful business enterprise, and the decade of litigation that has ensued.

In a case called VanSickle (Elms) v. VanSickle the court began its judgment this way:

This is a family tragedy. The [father’s] relationship with his two children, … is now irreparably shattered. The parties have spent money they could ill afford on four days of trial wherein the [husband] has done his utmost to convince the court that his daughter, a university student, is no longer a dependent and not entitled to any support from him. ….

And from Justice Quinn (who can often be relied on for a little editorializing in his judgments, see my previous Blogs, there is the less-moderate introduction to the decision in Szakacs v. Clarke, where he pointedly tells it like it is:

Introduction

For best courtroom adaptation of a work of fiction, the award goes to the applicant, Clarissa Olenka Szakacs, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.

One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. …

At several points throughout the trial, Ms. Szakacs emphasized that she was a Christian who practiced Christian values. There must be some key pages missing from her copy of the Bible.

Finally, in a judgment from only a few months ago called De Cruz-Lee v. Lee, the exasperated yet still-mindful judge said:

Overview

1 This case is a classic illustration of the difficulty of obtaining justice when a trial is conducted by a party or parties who are self-represented. Ms. Angela De Cruz-Lee (“Ms. De Cruz-Lee”) was self-represented and conducted the trial by herself. It is said that a person who represents himself has a fool for a client. That saying should add something about how self-representation is about the most expensive trial lawyer you can pay for. … [T]his trial originally was scheduled for one to four days and was set … to settle two issues. On November 17, 2014 a further pre-trial was held. The issues were down to ownership of the home estimated to be a one to two day trial. The trial in fact went on for nine days. The dispute was over an approximate $53,000 held in trust. Regrettably, the costs of this trial will consume most if not all of that amount. I note that Superior Court trials in Family Court are governed by a variety of rules. These rules are designed to ensure trials are expeditiously run at some cost efficient level. At this trial, those rules meant nothing. …

In writing this judgment, I have cautioned myself, that in the end, Ms. De Cruz-Lee was poorly represented and I am going to have to make allowance for that fact in making my decision.

Judges are only human. Such sentiments are no real surprise in light of the parade of difficult, doubtless heart-wrenching family disputes that come before them daily – some of which should never have been aired in a Canadian courtroom at all.

For the full text of the decisions, see:

Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810

VanSickle (Elms) v. VanSickle, 2012 ONSC 7340

Szakacs v. Clarke, [2014] O.J. No. 6214

De Cruz-Lee v. Lee, 2015 ONSC 1900

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

15 Best Quips by Justice Quinn in Pirbhai v. Singh

15 Best Quips by Justice Quinn in Pirbhai v. Singh

The Ontario Superior Court of Justice released the 2010 decision of Justice Quinn in the case of Kalinuddin Pirbhai v. Gurnek Singh on May 7th, 2010.

This is another decision filled with wry quips and comments by Justice Quinn. The background and outcome of the Singh decision can be found in earlier blog Quinn’s Quips Continue: More Quips from Mr. Justice Quinn http://bit.ly/l0Tt86

Keeping with the 15 Best Quips format we decided to highlight some of Justice Quinn’s more colourful and pointed comments. Justice Quinn’s judicious use of humor and wry quips continue to provide fodder for bloggers and legal commentators.

Here we go:

1. A friend of a friend is not necessarily your friend.

2. In 1999, the plaintiff was in the market for a used, high-end motor vehicle. A friend of his said that he had a friend who could supply such a vehicle. Ten years, and 31 days of trial, later, that transaction is finally completed. The plaintiff ended up with an expensive bargain.

3. The trial was most notable for revealing the defendant, Gurnek Singh (“Singh”), to be unblinkingly dishonest. He shows no aptitude for the truth; he is without a conscience; he is incorrigible.

4. Singh, on the other hand, is a devious man and an unbelievable witness who will do or say anything to advance his position. He was maddeningly unwilling to respond to the simplest of questions and often had to be asked the same question over and over (no doubt using the time gained to visit his pantry of untruthful answers).

5. Indeed, by the end of the trial, if Singh were to have testified that the world was round, I immediately would have sought membership in the Flat Earth Society.

6. Throughout the trial, I patiently waited for a Phoenix-like moment that might serve to rehabilitate his credibility: it never came. All in all, he was an exasperating witness who told untruths too numerous to catalogue and insulting in their breadth.

7. I feel somewhat responsible for this as I must have done or said something during the trial that caused Singh to believe that I was dim-witted.

8. There is no suggestion that Singh was the victim of a rogue employee or that there was a faxing poltergeist bumping about Brampton Auto.

9. Singh deposited the cheque to his personal bank account and thought that his splendid skullduggery had succeeded.

10. the plaintiff took the Lexus for a drive. He noted that the vehicle swayed, swerved, wobbled and emitted unusual noises. He also observed that it seemed to have a number of body parts that did not match [with the endnote] .. Something of an automotive Frankenstein.

11. Singh abandoned the Toyota story, said “Yes,” this document related to the Lexus, and offered an explanation that fell somewhere between a yarn and a fairy tale.

12. Singh’s evidence, in this area of the case, is an example of the elaborate lengths to which he was prepared to go to deceive the court. If lies were clothes, Singh would have been considerably overdressed for the trial.

13. Singh maintained that he did not receive this fax. However, the telephone records of the plaintiff establish that it was sent as he testified. Singh, overestimating the obtuseness of his audience, straight-facedly testified that perhaps the plaintiff had faxed a blank piece of paper. Singh did not produce any telephone records for this time-frame.

14. Singh’s casual and haphazard approach to his business and corporate structure and, more importantly, his fraudulent conduct in this case, vitiate the benefit of limited liability available through the process of incorporation and, therefore, in my opinion, attract personal liability. The corporate veil here was more of a bandit’s mask.

15. I have not said anything about a counterclaim made by Singh and that is because it was advanced with more nerve than merit. At that point in the trial, Singh’s credibility had immolated and the court was up to its sash in falsehoods.

Justice Quinn’s full decision is available at http://bit.ly/nsaDn9

Quinn’s Quips Continue: More Quips from Mr. Justice Quinn

Quinn’s Quips Continue: More Quips from Mr. Justice Quinn

A few months ago, I wrote about the judgment of Mr. Justice Quinn in the Ontario family law decision in Bruni v. Bruni, see http://bit.ly/lhJ15r .  The judge’s Reasons for Judgment were – to say the least – on the colourful side: they were filled with unusually-candid quips, humorously pointed observations, and – at some points – scathing criticisms of the parties to the litigation. To set the tone of that judgment, it is sufficient to note that they began with the words “Paging Dr. Freud. Paging Dr. Freud.”

Well, Justice Quinn is at it again. While not a family law case, in Pirbhai v. Singh (c.o.b. Sarwan Auto Sales), Justice Quinn makes no bones about the character of the defendant Singh, whom in the second paragraph he calls “unblinkingly dishonest”. He goes on to conclude that Singh “shows no aptitude for the truth; he is without a conscience; he is incorrigible”, adding that “All in all, he was an exasperating witness who told untruths too numerous to catalogue and insulting in their breadth.” And in case there remained any misunderstanding about his assessment of the defendant’s credibility, in a footnote to the decision the judge adds: “Singh should not be permitted to conduct any commercial business in the Province of Ontario that brings him into contact with members of the public”.

These caustic observations are contained in a 27-page decision pertaining to a dispute between Singh, a used car dealer and auto collision shop owner, and Pirbhai, a St. Catherines doctor. Pirbhai had wanted to buy a used luxury car and had been referred to Singh by a friend-of-a-friend. The deal went sour because of Singh’s shoddy workmanship and broken promises in connection with a used Lexus that Pirbhai agreed to buy. The matter finally came before Mr. Justice Quinn after 10 years, and took 31 days of trial time.

In this context, Judge Quinn calls Singh “a devious man and an unbelievable witness who will do or say anything to advance his position. He was maddeningly unwilling to respond to the simplest of questions and often had to be asked the same question over and over (no doubt using the time gained to visit his pantry of untruthful answers.)” Ultimately, the judge ordered Singh to pay Pirbhai $33,465.77 in compensation, together with $50,000 in punitive damages.

Despite his role as a respected member of the judiciary, Mr. Justice Quinn is not stranger to calling it as he sees it. In 2009, he rendered a similarly-candid decision in a dispute between two best friends who engaged in bitterly-fought litigation over a $5-million lottery win. “During this trial, truth was only an occasional visitor,” Judge Quinn wrote. He added: “the case is awash in untruths and curiosities.”

Mr. Justice Quinn may be among the most forthright (and prolific) of Ontario judge in terms of a willingness to write such unreserved rebukes to parties and their witnesses. I am sure there will be similar decisions in the future, to look forward to.

For the full-text of the judgments, see: Bruni v. Bruni, 2010 ONSC 6568 (CanLII) http://bit.ly/jib4Vnand and Pirbhai v. Singh et al., 2010 ONSC 2446 (CanLII)   http://bit.ly/lvRt3W

As a side note, in a separate decision regarding costs in the Pirbhai case Justice Quin notes that:

“Singh was evasive as a witness. He refused to acknowledge simple factual matters. He failed miserably in making reasonably diligent efforts to provide documentary disclosure, rendering it obvious that his objective was to divulge only what he wanted the court to see. Singh lied under oath. He tendered forged documents in evidence with the intention that the court act upon them. He perpetrated a fraud upon the plaintiff and his plan was to do the same upon the court. In this trial, he was a one-man crime wave. “

Justice Quin then awards the Plaintiff $131,211.74 in costs plus $2,000 in HST, in addition to the judgment for $33,465.77 and $50,000 in punitive damages.  This costs decision can be found at Pirbhai v. Singh, et al, 2011 ONSC 1366 (CanLII) http://bit.ly/lx509U

For further details of this decision, please see my subsequent blog 15 Best Quips by Justice Quinn in Pirbhai v. Singh at http://bit.ly/nXU658