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November 20, 2017

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Law Times • November 20, 2017 Page 3 Independent legal advice recommended Judge strikes lawyer's claim against firm BY ALEX ROBINSON Law Times A n Ontario judge has struck a lawyer's wrongful dismissal claim against his for- mer firm in a decision that law- yers say shows even practitio- ners need legal representation. Superior Court Justice Thomas Bielby struck lawyer Amin Sachedina's mammoth 259-paragraph statement of claim, saying it was "excessively long" and breaks the Rules of Civil Procedure. Bielby granted Sachedina leave to amend the claim, but he urged him to get a lawyer. "Regardless of the fact that he is a lawyer, I recommend to him, in the strongest terms, that he retain counsel, if not to draft a new statement of claim, to re- view any new claim drafted by him," Bielby wrote in the deci- sion in Sachedina v. De Rose. "The claim which is to be struck is clearly one that can be said to be like a document pre- pared by an irate client. There is an emotional and bias overlay to the pleading, representing a lack of objectivity which has resulted in an 87 page claim containing 259 paragraphs." Lawyers say the decision highlights that practitioners representing themselves need to heed the advice often given to self-represented litigants in court that they should hire a lawyer to represent them. Erin Cowling, principal of Flex Legal, who was not in- volved in the matter, says the lawyer was too close to this case and was pleading a lot of emo- tion as a result. "Lawyers who represent themselves have fools for cli- ents," she says. "Maybe we tend to want to represent ourselves because we think we know the case better, but it's in our best interests to hire lawyers to help, especially in a wrongful dismissal claim." Sachedina claimed the firm that retained him as an inde- pendent contractor — De Rose Barristers and Solicitors Profes- sional Corporation — wrong- fully terminated him in May 2014. Sachedina had been under contract with the firm from 2006 to 2007 and from 2009 un- til the contract was terminated. The claim, which was not commenced until three days before the second anniversary of the lawyer's termination, was brought against the firm and its principles, as well as past and present lawyers and paralegals. The defendants brought a motion to strike the claim, ar- guing that it contravenes the Rules of Civil Procedure, as it pled evidence rather than mate- rial facts and breaches solicitor- client privilege. Sachedina refused to waive the filing of a defence before letting the motion to strike be heard, forcing the defendants to submit a statement of defence so that they would not be found in default. He also amended the claim twice. Sachedina then argued that the defendants are barred from alleging the claim does not comply with the rules, as they filed the statement of defence. Bielby found that Sachedina's claim was too long, which made it impossible to compose a state- ment of defence. While the claim is for wrong- ful dismissal, it did not even mention receiving a letter of ter- mination as a result of missing a limitation period until close to the end of the claim, the deci- sion said. Bielby determined the claim also did not contain particu- lars in regards to what damages f lowed from the termination. The claim refers to a "culture of intimidation" at the firm and recited evidence "without con- necting any material facts to a cause of action," Bielby wrote. The judge also found the claim goes beyond setting out material facts, contains embel- lished facts and breaches solic- itor-client privilege by setting out the name of clients and in- house discussions of counsel. "The claim sets out the names of multiple clients, some facts and circumstances re- garding their files, including in house discussions of counsel," says the ruling. "In my opinion this may give rise to multiple breaches of solicitor-client privilege, es- pecially the identification of clients and, as such, the offend- ing paragraphs would be inad- missible. Certainly, the clients' names [ought] to be deleted or referenced only [by] initials." Bielby described the claim as "an evidentiary diary of or sto- ry" that detailed the inner work- ings of the firm. He found it went far beyond the material facts that are sup- posed to be in a statement of claim. While its contents may be admissible evidence at trial, this was an improperly drafted claim, the judge said. "There are simply too many problems with it for a 'Band- Aid solution,'" Bielby said of the claim. Jennifer Heath, partner with Rubin Thomlinson LLP, who was not involved in the case, says lawyers planning to sue their former law firm need to be careful not to plead anything in their statement of claim that breaches solicitor-client privi- lege. "If you're thinking that you're going to intimidate your former employer by pleading information about their clients and the way they do business, the usual rules of pleading ap- ply," she says. "You can't plead privileged information [and] you can't use the dirt that you have on your employer in the same way some- one who is working at a factory that had safety complaints could throw in those little digs at their former employer." Heath says that airing "dirty laundry" in a statement of claim can be a common tactic in wrongful dismissal litigation to bring a former employer to the table, but in this case, she says, the lawyer went offside from the rules by pleading privileged in- formation about clients. She says lawyers need to re- member that they probably should not represent themselves in matters in which they cannot be objective. "Everyone, including law- yers, can benefit from indepen- dent legal advice when it comes to these matters," she says. Heath adds that Sachedina was lucky he was granted leave to amend the claim. Emilio Bisceglia, the lawyer representing the firm in the pro- ceeding, said the sheer length of the statement of claim made it impossible for the law firm to respond to it. He said the decision shows pleadings cannot be used as a lengthy personal attack on the opposite party, possibly disclos- ing privileged information. "Parties should plead the ma- terial facts and move forward so that the parties know the case they need to meet at trial," he said in an email. Bisceglia says law firms that may face allegations of wrongful termination need to ensure that the allegations contained in the statement of claim comply with the Rules of Civil Procedure. They might need to bring an early motion to strike out the offending claim in order to pro- tect clients, he says. He adds that Sachedina's al- legations are devoid of any merit and strictly denied by his clients. Sachedina, who could not be reached for comment, will have 30 days from the release of the decision to amend his claim. LT NEWS Erin Cowling says practitioners should hire lawyers to represent them when they sue their former employer. Everyone, including lawyers, can benefit from independent legal advice when it comes to these matters. Jennifer Heath 561-391-3344 f 561-948-4713 d 561-910-7861 Florida Probate and Tax Planning Services STEVEN Z. GARELLEK Florida Bar Board Certified in International Law Member of the Florida, Ontario, and New York Bar 200 East Palmetto Park Road, Suite 103, Boca Raton, FL 33432 ntitled-2 1 2017-09-13 1:45 PM Legal News at Your Fingertips Sign up for the Canadian Legal Newswire today for free and enjoy great content from the publishers of Canadian Lawyer, Law Times, Canadian Lawyer InHouse and Lexpert. Visit THE LATEST NEWS Keep abreast of essential late-breaking legal news and developments. THE BEST COMMENTARY Access trusted analysis and opinion on the cases and changes that are shaping the legal landscape. DELIVERED WEEKLY Your profession can change quickly, which is why you need the freshest, most recent information. FOR READING ON ANY DEVICE Get the news and opinions you need on any device. Whether you read at work, or on the go, the newswire adapts to your screen. Untitled-3 1 2017-11-15 2:53 PM

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