Law Times

Page 4 March 18, 2013 Law Times • NEWS Lawyer hopes ruling is first step 'to some sort of finality' Continued from page 1 application by Vivian Assaf against her late husband's estate. Attempting to bring the legal saga to a close, Morgan said the court has to play the role of gatekeeper to protect the publicly funded justice system. "William Assaf has persistently attempted to relitigate issues already determined by the court," wrote Morgan. "He has brought claims and appeals that no reasonable person could expect to win. What's more, he has initiated actions, motions, and appeals that contain no legally recognizable claim and that do little more than oppress and harass his opponents with repetitions of prior claims." The Assaf family's litigation is "long and painful," Morgan said, adding the matter is "so extensive that it would be counter-productive to attempt to trace it all." The case relates to the will Assaf 's father left upon his death that favoured his daughter, Barbara Laroq, while leaving only small annual payments to Assaf and his mother Vivian. Assaf produced a different will and "claimed to have found [it] among his father's possessions," wrote Morgan. "The found will was held to be a forgery." Assaf was convicted of uttering a forgery and sentenced to four years in jail, a number later reduced to 2-1/2 years. The executor of his father's estate, Robert Bosada, was also found to have forged a document at one point. The judge who presided over that case admonished Bosada but said his actions had no bearing on the ownership of the property. "In any case, the continued litigation of issues respecting the property and the damages claims in the action would certainly amount to an abuse of process," wrote Morgan, whose alphabetical list of the claims to the property extends to the letter Y. Assaf "has attempted to appeal virtually every ruling, often simply for the sake of filing an appeal and then having it dismissed for failure to perfect," wrote Morgan, adding Assaf has also consistently failed to pay costs awarded against him. In addition to their own family members, Assaf and his mother brought claims against the purchasers of the property in question. The owners of the home in Toronto's Forest Hill, Mary Matthews and James Archer-Shee, have, "doubtless to their lasting regret, stumbled into the Assaf family maelstrom," wrote Morgan. Although Matthews and Archer-Shee are the rightful owners of 140 Dunvegan Rd., Assaf and his mother have challenged their ownership since their 1998 purchase, Morgan added. Assaf also sued Bernard Burton, the lawyer who once represented Bosada. "In about 2003 or 2004, somewhere in that area, we had been in court about 135 times," says Burton. "Imagine this, including appeals to the Court of Appeal," he adds. While family law matters often lead to heated disputes, estates litigation "in some ways can be even worse," says Toronto lawyer Garry Wise. "Sibling rivalries go back to the beginning of time; they're hugely entrenched," he says. "When parents make choices in the way they construct their wills and plan for their estates that leave one child or more than one child feeling out of the favoured circle, it's just a prescription for this stuff to go on and on and on." There's a cautionary tale for lawyers in cases like this one, says Wise. When they help clients draft a will, they should warn them about what could happen if they exclude someone or favour one child over others, he notes. "The vast majority of their estate could get swallowed up by litigation if they don't act in a way that is perceived as evenhanded." There are no administrative controls in the justice system that stop persistent litigants from suing repeatedly, says litigation lawyer James Morton. "In Ontario, pretty well anyone is allowed to sue anyone for anything. The controls on that are costs and in an extreme case an order, as in this decision, for declaring someone a vexatious litigant. There is nothing administrative to stop me from suing again and again and again for the same relief against the same people." Although courts have discretion to use the vexatious litigant label on their own accord, it's unusual for them to make such an order unless there's an application asking for it, says Morton. "The court upon seeing an abusive process could make an order to ensure that things proceed in an orderly fashion without useless motions, but it would be very, very, very unusual for the court to take such a dramatic step without anyone asking," he adds. "The role of a judge or judicial officer is not to litigate for people; it is to decide questions they're asked." At a time when courts are seeing greater numbers of self-represented litigants, Wise says this case is a caricature of what he calls a broader problem of loose gatekeeping in Ontario's courtrooms. "I think there's a question that's bound to be asked sooner rather than later about our court system as a whole, which is: How much longer will our country be able to afford to maintain a robust court system to all to deal with what are essentially personal and private disputes?" he asks. As a fundamental tenet of democracy, tinkering with the court system isn't easy, says Wise. But "at a certain point, we are going to have to as a society draw lines," he adds. For his part, Morgan noted the vexatious litigant declaration "does not deprive a person of access to justice; rather, it provides extra scrutiny by the court, and impresses potential claims with a form of orderliness without prejudicing their merits." Still, Morton calls the vexatious litigant declaration an effective deterrent. "In my experience, when you have a vexatious litigant, it is extremely rare that they would bring an application or a claim that the judge will permit to go forward," he says. But Burton says an appeal of the recent decision wouldn't come as a surprise. "Judging by the past, of course he will appeal," he says. "However, this is the first step, I hope, on the way to some sort of finality." He adds: "We are prepared, when we get the order, to send a copy of it around to every court registrar in Ontario just to make sure he doesn't walk in and, you know, not tell them and put something down." Assaf 's agent, Daniel Barna, says the pair disagree with the notion that Bosada's forged documents didn't have any bearing on the ownership of the property. "What we were hoping Justice Morgan would do was recognize that the only way previous orders had been obtained was through lying to the courts," he tells Law Times. The true owner of the property, Barna maintains, is Savarin Ltd., a Bay Street nightclub once owned by Assaf 's father. Assaf is now the owner of the company. "The judges have chosen to believe Bosada, found to be a forger and a perjurer," he says. Assaf will appeal the vexatious litigant declaration, he adds. Asked about the costs still unpaid by Assaf, Barna says: "Well, of course these guys have siphoned all the money out of the estate." LT Crown disputed arguments about parole eligibility Continued from page 1 previous conviction and matters involving the commission of an indictable offence while on bail — is more reason to believe that the absence of other qualifiers is intentional, according to Cronk. "None of the words 'exceptional,' 'unusual,' or 'special' (nor, I would add, any of the words 'compelling,' 'extraordinary,' or 'rare') is used in s. 719(3.1) to constrain or limit the circumstances that may justify enhanced credit," she wrote. "A showing of exceptional circumstances is not required to ground enhanced credit under s. 719(3.1)." The sentencing judge, Superior Court Justice Stephen Glithero, had ordered Summers to serve eight years in prison for the 2010 death of his fourmonth-old daughter, Kayleigh, who died of injuries she sustained after he violently shook her while looking after her. Summers entered a guilty plea. Using a ratio of 1.5:1, the sentencing judge gave Summers credit of 16 months, a number that will remain intact after the appeal court's decision. Hick Adams LLP partner Corbin Cawkell, counsel for intervener the Criminal Lawyers' Association, says the appeal court provided much-needed clarification on the act. Ruling contrary to other provinces' courts "would have added further confusion to an already confusing landscape," he says. The ruling, according to Cawkell, is a fair one for those who can't get bail for finanical reasons. "The fact is, if you were given credit on a one-for-one basis, you weren't treated the same way as somebody who wasn't held in custody," he says. In provincial and territorial prisions, most people get out after serving two-thirds of their sentence. In federal prisions, "well over 95 per cent" of individuals get out after serving the same amount of time, says Cawkell. If those held prior to trial and sentencing don't get enhanced credit, they'll end up serving more time than someone who comitted the same crime and got the same sentence but had been out on bail, he notes. "If you count every single day as 1.5:1 for pretrial custody, you're given the same sentence that you'd get if you were sentenced on that day and walked into custody," says Cawkell. "Everybody then gets something close to twothirds of their sentence." He adds: "That's what the whole purpose of the law is. Everybody is supposed to be equal." Hamilton, Ont., criminal lawyer Jeffrey Manishen agrees. "There's a very logical reality to the concept that someone who hasn't been able to get bail but would otherwise be eligible for parole and remission should get credit for that beyond simply one day for every day spent in custody," he says. "If you deny the person additional credit, you're effectively requiring them to spend more time in custody than someone who had gotten bail," adds Manishen, who calls the decision "thorough, extremely well-reasoned, and sound." Manishen lauds the appeal court for upholding the notion that a judge should have the discretion to sentence people based on their individual circumstances. "I'm really concerned that www.lawtimesnews.com the federal government has lost sight of that," he says. "Their legislative schemes on a consistent basis have been designed to restrict judicial discretion on matters of sentencing whether in the way of the significantly increased use of statutory mandatory minimum sentences or here to endeavour to restrict credit to be given for time spent in custody." Parliament has, for example, effectively taken the 2:1 credit option off the table, says Manishen, who argues there are "critical features" recognized under the previous system. Jail conditions in remand facilities are harsher, there are few rehabilitative and recreational programs, and the remanded person loses eligibility for parole and remission, says Manishen. In its factum, the Crown argued that loss of remission and eligibility for parole couldn't on their own be valid circumstances for granting enhanced sentencing credit. "There was no suggestion that the respondent had suffered harsh or oppressive remand conditions. Instead . . . the defence sought this enhanced credit solely on the basis that the respondent didn't have the benefit of earned remission during the period of his presentence custody," wrote Crown attorney Gregory Tweney. Tweney also said other courts have rejected the line of jurisprudence used by the sentencing judge. The appeal court, however, found the sentencing judge had applied the 1.5:1 credit to avoid "disparate and inequitable treatment of offenders." If there's one issue that troubles Cawkell about the appeal court's decision, it's that it suggests defence counsel now have a new burden of proof. "What the court seems to suggest is that I'm supposed to prove that my client is going to get two-thirds of their sentence, that they are going to be paroled, whereas the statistics suggest that everybody is," he says, adding he's unsure how other courts will interpret that aspect of the decision. "I'm just concerned that the courts are going to require us to prove something that the Crown should really prove." LT

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