Law Times

Page 4 September 12, 2016 • Law timeS www.lawtimesnews.com NEWS Five years of litigation after wrongful dismissal claim Humane Society rapped for 'reprehensible' conduct BY ALEX ROBINSON Law Times A straightforward wrong- ful dismissal claim against the Humane Society of Canada "spun out of control" into a five- year web of litigation because of vexatious conduct by the organiz- ation, a Superior Court judge has found. In a recent decision, Justice Carolyn Horkins threw out an appeal by the HSC, finding the organization had "repeat- edly engaged in conduct that is frivolous and vexatious," af- ter a former employee, Darcy Gates, successfully brought an action against the HSC in Small Claims Court. "It's litigation off the rails basically," says Elichai Shaffir, the lawyer representing Gates in the proceeding. "There's just been this in- credible amount of litigation over a simple wrongful dismiss- al matter." After a two-day trial in 2011, a deputy judge found Gates had been wrongfully terminated because of an argument with a colleague. Since the original decision, the Humane Society, repre- sented by its CEO, Michael O'Sullivan, has filed at least 15 different motions, which drew out the proceedings over five years. The case has Ping-Ponged through a number of different courts on appeal, appearing in the Divisional Court and the Court of Appeal, before re- turning back to the Divisional Court. Horkins dismissed the ap- peal and prohibited the HSC from filing any further motions in the proceedings without first obtaining leave from the Div- isional Court. "In summary, this appeal on its face is frivolous, vexatious and an abuse of the process of the court," Horkins said in the decision, Gates v. The Humane Society of Canada. "HSC's reprehensible and egregious conduct must stop. The court must exercise its gate keeping function to bring an end to this conduct." Lawyers say the case should serve as a cautionary tale for anyone looking to appeal a wrongful dismissal case without a lawyer. O'Sullivan, who is not a lawyer, obtained leave to repre- sent the HSC in court. In the original Small Claims proceedings, the HSC had claimed $12,742.60 in costs, saying O'Sullivan was unable to bring in $10,000 in donations while he was dealing with Gates' termination. The deputy judge dismissed the claim as vexatious as there was no evidence presented to the "seriousness of the shouting incident, but rather evidence of Mr. O'Sullivan's style," the deci- sion read. The deputy judge awarded $12,189.38 in damages to Gates and costs of $4,000. The HSC then filed a notice of appeal of the Small Claims Court decision in 2011, but it was dismissed by the Divisional Court's registrar after it failed to perfect its appeal in 2012. The organization then brought a motion to throw out the dismissal and to obtain leave for O'Sullivan to represent the HSC in the Divisional Court. The order was granted, but the HSC still failed to perfect its ap- peal, which was then dismissed by the court's assistant registrar in 2013. In 2013, the HSC then brought a motion to set aside the second dismissal and had that motion dismissed. The HSC then filed a motion to set aside that order of dismiss- al, but it did so after a three-and- a-half-week deadline. This motion was heard by a Divisional Court panel and was also dismissed. A motion in the proceedings was eventually heard by a panel at the Court of Appeal and dis- missed. "Every time the Humane So- ciety wasn't successful on a mo- tion or we were successful, they would simply appeal it or review it and that's why a lot of these mo- tions, which probably wouldn't have made it much further than the first motion itself, turned it into two or three motions, be- cause they kept trying to appeal the loss," says Shaffir, who is with Cavalluzzo Shilton McIntyre & Cornish LLP. The total amount the HSC owes to Gates at this point is more than $32,000, including costs awarded and the original damages, says Shaffir. During the proceedings, O'Sullivan filed a complaint against Shaffir in 2012 with the Law Society of Upper Canada. O'Sullivan claimed Gates had committed perjury in the trial. The law society later investi- gated the complaint and closed the file, saying there was insuffi- cient evidence to warrant a re- quest for such an inquiry. The HSC also claimed a po- lice investigation into the inci- dent that led to Gates' dismissal was ongoing, but Horkins said there was no evidence in the re- cord of such an investigation. Horkins dismissed the HSC's appeal, using Rule 2.1 of the Rules of the Civil Procedure, which allow the court to throw out motions that are deemed vexatious or frivolous. "Despite a stern warning from the Divisional Court in 2013, HSC's reprehensible and egregious behaviour has not only continued but expanded to include false allegations of seri- ous misconduct (some criminal in nature) against Mr. Gates' counsel," Horkins said. "After more than five years of litigation between the par- ties, there is nothing in the record to support these allega- tions." Rule 2.1 was introduced in 2014 to try to weed vexatious liti- gants out of the courts. But employment lawyer Adrian Ishak says the Gates v. Humane Society case shows the length that a party has to go to be barred from making further applications to the court. "It just speaks to the length the court will go to give some- one their day in court," says Ishak, who is an employment lawyer with Rubin Thomlinson LLP and was not involved in the case. "Given the history of this case, I'm actually very surprised that it took the court that long to make the orders that it made. "It strikes me as frankly a bit of a miscarriage of justice that it took this plaintiff over five years to recover on a judgment that was issued in 2011," he adds. O'Sullivan declined to com- ment on the decision, saying the matter is "still before the Court." Shaffir says he does not know why it took so long for the court to determine O'Sullivan's mo- tions as vexatious, as he says "it was early on where I would think the writing was on the wall." "at was one of the chal- lenges we were dealing with," he says. "From our perspective, once we had the trial, once we got into motion two or three, none of this had any chance of success. ere was no merit." Shaffir is not convinced the case is yet finished, despite the fact that O'Sullivan's appeal was dismissed as vexatious. LT Elichai Shaffir says there's been an 'incred- ible amount of litigation over a simple wrongful dismissal matter.' Available Risk-Free for 30 Days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 987143-65203 $111 Hardcover + CD-ROM August 2016 approx. 1480 pages 978-0-7798-7143-8 Annual volumes supplied on standing order subscription Practice Advisor available upon request on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Get the latest on small claims court practice New Edition Ontario Small Claims Court Practice 2017 Mr. Justice Marvin. A. Zuker and J. Sebastian Winny New in this Edition • All amendments to the Small Claims Rules and Forms, which includes O. Reg. 38/16 in force March 31, 2016 • "Hot Topics" including: — The concern for proportionality – Although most trials in Small Claims Court take no more than one day, there is increasing anecdotal information about multi-day trials. — The issue of scheduling and its effect on justice – Because the availability of resources, trial continuation dates may be months in the future. — The question of the discovery type motions in Small Claims Court and policy issues relating to these motions at this court level — The problem of increasing costs at the Small Claims Court level • Discussion of recent rules amendments such as the amendments regarding electronic filing, litigation guardians, and automatic dismissal for delay • All significant new court decisions throughout Canada, both reported and unreported, such as: — Riddell v. Apple Canada Inc. — Belmar Roofing Inc. v. Footworks Chiropody Clinic — Whitford v. Backman and Yormack & Associates v. Empey — Brydges v. Johnson • Addition of substantial and lengthy commentary regarding judicial impartiality, discovery-type motions, expert reports, adjournments, lawyers' claims for unpaid accounts, jurisdiction over family matters, jurisdiction in residential tenancy cases, marking excluded exhibits, and cost consequences of defence offers • Updated and current S.C.C. Locator • Updated list of judges and court contact information © 2016 Thomson Reuters Canada Limited 00239YV-A84372-CM It strikes me as frankly a bit of a miscarriage of justice that it took this plaintiff over five years to recover on a judgment that was issued in 2011. Adrian Ishak

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