Law Times

Page 4 June 23, 2014 • Law Times www.lawtimesnews.com Lawyer faulted for uncontested trial without telling opponent But Abba Chima says he hadn't heard from other side for more than a year By yAMri TAddese Law Times Toronto family lawyer is defending himself against an Ontario Superior Court judge's suggestion that he fell "below any sensible standard that a reason- ably ethical counsel should meet" after he proceeded with an un- contested trial without notifying opposing counsel. The lawyer, Abba Chima, tells Law Times he went on with the trial because he hadn't heard from the opposing counsel for more than a year. But according to Superior Court Justice Gordon Lemon, Chima, who represented the wife in a divorce matter, didn't respond to correspondence from the husband's counsel before he set up the trial that resulted in a significant award for his client. Lemon set aside that order in a recent ruling and criticized Chima for even defending his actions in the matter. "It astonishes and upsets me that Mr. Chima seriously argues this matter at all. As can be seen by the unanimous opinion of the professional bodies of Cana- dian lawyers, Mr. Chima failed to carry out his duties to his client, to opposing counsel, and to the court," wrote Lemon in Fotwe v. Aning on June 9. The couple in the family law matter had each filed applica- tions for divorce in Oshawa and Brampton, Ont. But after the Ministry of the Attorney General told them they had to withdraw one of them, the husband with- drew his application in Oshawa. According to Lemon, the husband's lawyer, Anne Silver- man, asked Chima twice in No- vember 2012 to withdraw his response to the Oshawa appli- cation as well so the Brampton case could proceed. "It is agreed by counsel that Mr. Chima did not respond to those letters," wrote Lemon. But Chima says the only letter he received from Silverman on Nov. 2, 2012, said she had with- drawn her application in Oshawa and she would serve further doc- uments for the Brampton matter. After receiving nothing from Silverman by May, Chima says he went ahead with an uncon- tested trial. The lawyer says an agent rep- resented him before Lemon. He adds he's unsure how his agent could have agreed to having re- ceived a second correspondence from Silverman in November 2012 asking him to withdraw his client's response to the Os- hawa application. Chima does admit to re- ceiving a letter from Silverman in January of this year. But by then, "given the period that has lapsed, I thought honestly that there was something. . . . Either they were trying to play a trick or whatever," he says. He adds that Rule 25(19) of the family law rules allowed him to proceed without notice to op- posing counsel if the other party hasn't served and responded to an application. In fact, the judge may not have read all of the documents he included in his evidence before writing the judgment, Chima suggests. "I don't understand why I was singled out [by the judge]," he says. "Why would a judge write against a lawyer in such a dis- paraging manner when the doc- uments are there?" Lemon has sent a letter to the Law Society of Upper Canada complaining about him, Chima adds, noting he has never had a dispute with his colleagues or the courts before. According to Ravital Khardas, who represented John Aning after Silverman recused herself from the case, Chima should have noti- fied the judge about the previous lawyer's communication even af- ter hearing from her in January. "I don't think it was too late," says Khardas. "The court did not make a fi- nal order on the file until March 2014. Obviously, either the court should have been informed or Ms. Silverman should have been informed about the events that were happening." Khardas say her firm was surprised there was a final order in the matter given the history of the file and the significance of the decision. Lemon said the other judge, Justice Terrance O'Connor, wouldn't have made an order in the uncontested trial had he known Aning had counsel and there had been correspondence between Chima and Silverman. Chima "failed to point out to either myself or Justice O'Connor that there was other counsel appearing on behalf of Mr. Aning," wrote Lemon. "It is no answer to say that deep in the documents there was a piece of correspondence from Mr. Aning's counsel." He added: "I have no doubt that had it been brought to my attention that Mr. Aning had counsel, I would not have sent the matter on for an uncontest- ed hearing but rather required that the motion be served. I have no doubt that O'Connor J. would have done the same had he been told the same." Lemon seemed particularly upset by a letter Chima wrote to Silverman after her January cor- respondence. The letter said: "My primary obligation or duty is to my client and all things considered, we are under no duty — legal or equi- table — to you or your client to not pursue our matter diligently. My professional duty is to pro- ceed expeditiously before the court to secure and protect my client's interests pursuant to her application dated June 21, 2012. "Any tardiness, lack of dili- gence, faults, delays, wrongful legal and procedural steps un- dertaken in this matter and that have resulted in the unintended results or orders made against your client rest squarely on your shoulders and/or your clients." Lemon took issue with the letter. "His letter, set out above, shows that he is lacking in the knowledge of this basic part of being a lawyer," he wrote. LT NEWS Innovatio_LT_June2_14.indd 1 14-05-29 1:04 PM A It is no answer to say that deep in the documents there was a piece of correspondence from Mr. Aning's counsel.

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