Beacon Hill Service, 2011 ABQB 138

Court of Queen ’ s Bench of Alberta Citation: Beacon Hill Service

(2000) Limited v. Esso Petroleum Canada, 2011 ABQB 138 Date: 20110307 Docket: 9401 17300 Registry: Calgary Between: Beacon Hill Service

(2000) Limited Plaintiff - and - Esso Petroleum Canada, a division of Imperial Oil Limited and McColl-Frontenac Petroleum Inc. Defendants And: Imperial Oil, a partnership of Imperial Oil Limited and McColl-Frontenac Petroleum Inc. Plaintiffs by Counterclaim - and - Beacon Hill Service

(2000) Limited and E.F. Anthony Merchant Defendants by Counterclaim _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.D. Macleod _______________________________________________________ I. Introduction

[ 1 ] The principal partner of a law firm wants that firm’s associate(

s) to act for him and for a corporation of which he is a principal shareholder in a case in which he will be the main witness on behalf of those parties. His credibility is an issue. This decision attempts to resolve whether that firm should be removed as counsel of record for either or both parties. [ 2 ] Imperial Oil brings this application to remove the Merchant Law Group LLP (“MLG”) as counsel for the Plaintiff and for the Defendants by Counterclaim on the grounds that MLG is unable objectively or independently to represent the parties, E. F. Anthony Merchant (“Mr. Merchant”) and Beacon Hill Service

(2000) Limited (“Beacon Hill” or the Plaintiff). [ 3 ] Mr. Merchant is a Defendant by Counterclaim. He is named personally in the Counterclaim because he allegedly guaranteed the obligations of Beacon Hill. Mr. Merchant is also the founding and principal partner of MLG, a western Canadian law firm which at present is counsel of record for Beacon Hill and Mr. Merchant. [ 4 ] The position of MLG is that, in effect, Mr. Merchant is representing himself and the right to represent oneself trumps any rule relating to independence or objectivity.

It is also argued that any lack of independence does not require removal of MLG because it does not arise out of anything done by Mr. Merchant related to the practice of that firm. Mr. Merchant’s evidence relates to his business and not to his practice of law. II. The Proceedings and the Representation History of Beacon Hill and Mr. Merchant [ 5 ] Remarkably, this action was commenced almost 20 years ago by a Statement of Claim issued on behalf of Beacon Hill by Campbell, Germain, Crick and Cooper LLP, a Grande Prairie law firm. On September 17, 1992, MLG filed an affidavit of documents on behalf of Beacon Hill.

On December 2, 1998, the law firm of Fraser Milner LLP filed a Notice of Change of Solicitors and purported to act on behalf of the Plaintiff. In February 2000, that firm filed a Notice of Intention to Cease to Act. In April 2000, the Defendants filed a motion to remove MLG as counsel of record. The motion was not heard because on April 27, 2000, Fraser Milner LLP again became counsel of record. On February 28, 2001, Mr. Merchant personally became a Defendant by Counterclaim. On June 10, 2008, a Notice of Change of Solicitor to MLG was filed.

Following an unsuccessful attempt to strike the action for want of prosecution, the Defendants bring this motion to remove MLG as counsel of record. [ 6 ] It is clear from the evidence that Mr. Merchant is the principal actor of Beacon Hill and as such he will be its main witness at any trial of this matter. It is common ground that his credibility is at issue. He has filed a number of affidavits in these proceedings and he is the deponent in examinations for discovery on behalf of Beacon Hill. Over the past two decades, Mr.

Merchant has acted at various times as both the principal of Beacon Hill and as its lawyer. He appeared before the Competition Tribunal on behalf of Beacon Hill as its “non-legal representative”. In examinations for discovery, he produced himself as an officer of Beacon Hill. In October 1994, Mr. Merchant assured the Defendants’ counsel that another firm would be acting during the trial. In one of his affidavits in this proceeding, Mr.

Merchant claimed privilege over a document on the ground that he created it in his capacity as legal counsel for Beacon Hill and it therefore formed part of the communication between solicitor and client. Ultimately, this memorandum (the “Memo”) was ordered to be produced. It was written by Mr. Merchant to a Beacon Hill employee expressing some concern that Imperial Oil, or someone on its behalf, might talk to Beacon Hill employees. It ended with the sentence “You should advise Carol not to answer any questions.” III. Are Mr.

Merchant and Beacon Hill one and the same? [ 7 ] Counsel for both sides have urged me to ignore any distinction between Beacon Hill and Mr. Merchant. However, I do not think that is appropriate. [ 8 ] Although it was submitted by Beacon Hill through counsel that Mr. Merchant, directly or indirectly, controls 97% of Beacon Hill, the affidavits of Mr. Merchant attached to the Affidavit of Mark Nadeau of Imperial Oil shed more light on the situation. [ 9 ] In an affidavit sworn November 14, 1994 (Exhibit “N” to the Affidavit of Mark Nadeau), Mr. Merchant stated at paras. 2-3:

Approximately 97% of the shares of the Plaintiff Beacon Hill Service

(2000) Limited are owned by Merchant

(2000) Ltd. Merchant

(2000) Ltd. has five shareholders and five members of the board of directors. Those five individuals are my three sons, mywife, and I. [10] In an affidavit sworn August 29, 1996 (Exhibit “O” to the Affidavit of Mark Nadeau), Mr. Merchant stated at paras. 2-3: Approximately 97% of the shares of the Applicant Beacon Hill Service

(2000) Limited are owned by Merchant

(2000) Ltd. Merchant

(2000) Ltd. has five shareholders and five members of the board of directors. Those five individuals are my three sons, mywife, and I. [11] In an unsworn affidavit that has neither a signature nor a date (Exhibit “P” to the Affidavit of Mark Nadeau), Mr. Merchantstated at para. 2: Approximately 97% of the shares of Beacon Hill Service

(2000) Limited are owned by Merchant

(2000) Ltd. I am the president andmajor shareholder of Merchant

(2000) Ltd. [12] Accordingly, I am not prepared to accept any sort of identity or “virtual identity” between Mr. Merchant and Beacon Hill.First, there are 3% of shares unaccounted for that are not owned by Merchant

(2000) Ltd. There is no indication as to the owner of thoseshares. Further, Mr. Merchant does not appear to be the sole shareholder of Merchant

(2000) Ltd. Although he claims in one affidavit tobe the majority shareholder, the percentage is unknown. Hence, Mr. Merchant and Beacon Hill cannot be considered the same. I havenot been presented with any authority for the proposition that Mr. Merchant’s status with respect to Beacon Hill would justify treatingthe two as one. It is a fundamental tenet of company law that a corporation has an identity separate from its principals. Althoughcertainly it seems that Mr. Merchant is the controlling mind of Beacon Hill, I cannot ignore that fundamental principle. IV.

Supervisory Jurisdiction of Courts [13] It is trite law in this country that courts have jurisdiction over lawyers who are officers of those courts, and over their conductin legal proceedings which may affect the administration of justice. This supervisory jurisdiction necessarily includes a discretion in theproper circumstances to remove as counsel of record lawyers and law firms who have a conflict of interest: see MacDonald Estate v.Martin, (SCC), [1990] 3 S.C.R. 1235 at 1245-6. V. Can MLG continue as counsel of record for Beacon Hill or Mr. Merchant? [14] Mr. Flannigan, counsel for Mr.

Merchant and Beacon Hill, presented me with an American authority that the right to self-representation implies that one has the right to be represented by a counsel of his choice: Harrison v. Keystone Coca-Cola Bottling Co.,428 F. Supp. 149 (M.D.Pa.1977) at 152. With respect, I cannot accept this proposition either. Although the rights to self-representationand to counsel of choice are strongly connected, they are not one and the same. If Mr. Merchant is allowed to represent himself, it doesnot automatically follow that he has an unqualified right to counsel of choice.

A person can be deprived of his counsel of choice withgood cause: MacDonald Estate at 1243. One such cause is the prohibition against a lawyer acting as both advocate and witness. [15] It is a well-accepted proposition that a lawyer should not act as both witness and advocate. Accordingly, as members of a lawfirm are treated as having parallel interests, a firm should not act as counsel where one of its members puts his credibility on the line as awitness. The leading case in Alberta on this issue is Forward v. Zurich Insurance Co., 2002 ABCA 123, 303 A.R. 119.

In that case, ourCourt of Appeal in at para. 8 quoted as follows from para. 27 of the judgment of Schulman J. in Harvard Investments Ltd. v. Winnipeg(City) (1994), (MB KB), 93 Man. R. (2d) 269 (Q.B.):

It is reasonable to begin with the proposition that all members of a firm are identified as one in the eyes of the law. One must expect andrequire all members of a law firm to be loyal to one another and have mutual respect. A counsel who appears in court is expected to servethe interests of his client, but must also exhibit reasonable objectivity in advancing the case for his client. The role of counsel, in myview, is compromised when a member of the advocate's firm is called upon to testify for the client. Counsel is expected to be loyal to hisfirm member who is now a witness.

How can counsel properly discharge his obligation as counsel if he is, in fact, honor bound to beloyal to a witness? How can counsel in such circumstances be expected to argue an issue of credibility with respect to the evidence of hisfirm member? Furthermore, the client may also ask whether the counsel's loyalty to the witness surpasses his loyalty to the client'sinterests. [16] Justice Schulman in Harvard Investments adopted the rationale for this rule as framed by Prof.

Enker in “The Rationale of theRule that Forbids a Lawyer to be Advocate and Witness in the Same Case” (1977), vol. 357 American Bar Foundation Research Journal455.

I have read the passage quoted by Schulman J. and I agree entirely, particularly with the following: It is, thus, this objective quality of the lawyer’s role that renders him independent of his client no matter whom he represents, which, inturn, is what enables the lawyer to represent the criminal, the weak, the socially and politically unpopular - those elements of societywhose protection lies in the demand that reason rather than force and emotion be the test of their rights. [17] Indeed, the authorities indicate that the overriding and dominant duty is counsel’s duty to the court as its officer.

The alwayscolourful Lord Denning put it this way in Rondel v. Worsley, [1966] 3 All E.R. 657 (C.A.) at 665: [The advocate] has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say whathe wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth andjustice. He must not consciously mis-state the facts. He must not knowingly conceal the truth.... He must produce all the relevantauthorities, even those that are against him.

He must see that his client discloses, if ordered, the relevant documents, even those that arefatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code whichrequires a barrister to do all this is not a code of law. It is a code of honour.

If he breaks it, he is offending against the rules of theprofession and is subject to its discipline[.] [18] When a law firm’s objectivity is impaired, so too is its ability to fulfill this paramount duty. [19] Nevertheless, it is clear that one’s choice of counsel is not to be interfered with lightly. As the Court of Appeal held inForward at para. 6, the “critical consideration is whether the preservation of the integrity of the system of justice dictates” removal ofcounsel. While acknowledging that codes of conduct are not determinative, the Court of Appeal referred to

Chapter 10 Rule 10 of theLaw Society of Alberta’s Code of Professional Conduct, which sets out a general prohibition on a lawyer acting in a proceeding where heis likely to give contested evidence. What was at issue in Forward was whether the lawyer was “likely” to be a witness and to givecontested evidence. Indeed, this has been the focus in many of the cases and it has been held that mere speculation on that question isinsufficient to prohibit the lawyer from acting. [20] In this case, as noted above, there is no question that Mr.

Merchant will be a witness and that his evidence will be contested.What distinguishes this case from others concerning the advocate/witness rule is that Mr. Merchant’s testimony will be with respect tohis actions in his capacity as a businessperson, rather than as a lawyer and a member of MLG. Does the general rule still apply? [21] The commentary to

Chapter 10 Rule 10 of Law Society of Alberta’s Code of Professional Conduct states that the rule “doesnot prohibit a lawyer from representing another firm member, or the firm itself, when that person or firm is in the role of a client.”Beacon Hill and Mr. Merchant argue that this supports the proposition that the rule applies only when the testimony relates to thelawyer’s action as a member of that law firm. In this regard, they rely on Oliver, Derksen, Arkin v. Fulmyk (1995), (MB CA), 126 D.L.R. (4th) 123 (Man.

C.A.). [22] Fulmyk involved an appeal from a dismissed motion to remove a lawyer as advocate because a witness was also a lawyer atthe same firm. The substance of the dispute arose from the break up of the plaintiff law firm, of which the lawyer witness had been thesole proprietor. The plaintiff law firm alleged that the associates at the firm had taken files they had worked on at the firm and sought anaccount of its share of the fees those files generated. The lawyer witness subsequently had joined another firm and retained a lawyerthere as counsel for him in the dispute.

In dismissing the appeal, Twaddle J.A. wrote at 125-6:

An advocate's credibility may be impeached not only where the advocate doubles as a witness, but also where the advocate has acommon interest with a witness in the accuracy of that witness's evidence. This may occur where the witness is a partner or associate ofthe law firm to which the advocate belongs and the other lawyer's evidence concerns a matter arising from the law firm's practice. Theadvocate then has an interest in the court accepting the lawyer's evidence as its rejection reflects on all members of the firm.

Similarly, the questioned conduct or judgment which bars a lawyer from acting as an advocate may be not the lawyer's own conduct orjudgment, but that of another member of the advocate's law firm. But, here again, the advocate is only barred where the questionedconduct or judgment of the other lawyer occurred in that lawyer's capacity as a member of the firm. The existence of a wider rule was urged upon us by the defendants who brought the motion. They said it was to be found in itsapplication in Harvard Investments Ltd. v.

Winnipeg (City) (1994), (MB KB), 25 C.P.C. (3d) 185, [1994] 6 W.W.R.127, 93 Man.R. (2d) 269 (Q.B.), and Tapper v. Kaufman (1991), (MB KB), 49 C.P.C. (2d) 77, 77 Man.R. (2d) 209,28 A.C.W.S. (3d) 128 (Q.B.). Harvard Investments is, in fact, a case which falls within the rule as I have expounded it. A member of the law firm representing theplaintiff had conducted negotiations with the defendant concerning the subject-matter of the action. An order requiring that outsidecounsel be retained if the law firm member was called as a witness was made.

The negotiations conducted by the law firm member,about which he was to testify, were clearly undertaken in his capacity as a member of the firm. Other members of the firm had a directinterest in having their associate believed and were thus ineligible to act as counsel if the associate was called as a witness. Tapper v. Kaufman, on the other hand, represents a departure from the rule as I have expounded it. In that case, a law firm was barredfrom acting for a partner in a divorce action. No common interest in the subject-matter of the partner’s evidence existed.

Whether or notit was wise for the firm to act in the circumstances is not for me to say, but it clearly was legally permissible for the firm to do so. Thecase was not, in my respectful view, correctly decided. [Emphasis added.] [23] My review of the authorities does not support such a narrow view of the rule. Although an advocate has an interest in the courtaccepting the evidence of a lawyer witness when that evidence is with respect to that lawyer’s capacity as a member of the advocate’sfirm, the inquiry cannot stop there.

An advocate has an interest in the court accepting the lawyer’s evidence generally as its rejectionmay reflect upon the firm. A lawyer’s integrity is his most important professional asset. His credibility in multiple aspects of his life, ascounsel, as businessperson or otherwise, reflects on his reputation as a member of a firm. His associate or partner has an interest in thecourt accepting the lawyer’s evidence any time that lawyer’s credibility is at issue. Thus, an advocate and a lawyer witness should notcome from the same firm when the lawyer witness’ credibility is at issue.

My reading of Harvard supports that view. [24] Certainly, there is no absolute prohibition on an advocate and lawyer client coming from the same firm. It is likely that acrossCanada, many lawyers are working on personal legal matters for other lawyers in their firms. While one can only imagine the challengesassociated with having one’s superior or partner as a client, some allowance must be made for this in practice when the evidence is notcontested and justice does not otherwise demand it. [25] Here, however, Mr. Merchant admits that his evidence at trial will be contested and his credibility will be at issue.

Moreover,Mr. Merchant’s testimony will be central to the litigation. Mr. Flannigan or any lawyer from MLG has a stake in this Court acceptingMr. Merchant’s testimony, as its rejection would reflect on MLG regardless of whether Mr. Merchant’s testimony is as businesspersonor lawyer. I fail to see how an associate’s loyalty to the principal partner of his firm is less affected because that partner’s actions weretaken on his own or his company’s behalf rather than on behalf of the firm.

The ability to act objectively and as an officer of the court iseven more impaired in this situation because his superior’s personal wealth, in addition to his credibility, potentially are at stake. Thisconclusion is further supported in my view by the paramountcy of an advocate’s duty to the court as set out in the above passage fromRondel. [26] Moreover, Counsel for Imperial Oil has cited in support the case of E.A.M. Management Ltd. v. Northway Chevrolet Oldsmobile Ltd. (1993), (SK KB), 110 D.L.R. (4th) 440 (Sask. Q.B.).

In that case, an application was made to restraina law firm from acting for a plaintiff corporation of which two lawyers at the firm were directors. Mr. Abrametz, a member of the firm,was also a director of the plaintiff corporation. While he advised in his affidavit that his firm would seek independent counsel for thetrial of this action, he also advised that he would be conducting examinations for discovery of the proper officer for both corporatedefendants and would then present himself as the proper officer of the corporation to be examined for discovery.

The application wasallowed as it was virtually certain Mr. Abrametz would have to testify at trial and thus it would be inappropriate to have him or his firm

continue as counsel. This also supports the proposition that acting as an advocate and a witness is inappropriate even where the evidenceof the firm member relates to non-firm activity. [27] Mr. Flannigan has submitted that there is an alternative to a complete prohibition. Specifically, Mr. Flannigan suggests thatMLG could remain as counsel until the trial of this matter and I do not dispute that this may be appropriate in some circumstances.However, I find it would be inappropriate in this case. Mr.

Merchant is the key witness for Beacon Hill and his evidence will almostcertainly be both crucial and controversial. I simply cannot see, with the importance of Mr. Merchant’s testimony, how this would be anappropriate, functional alternative. [28] I conclude therefore that MLG should be removed as counsel of record in this case for both Beacon Hill and Mr. Merchant. VI. Can Mr. Merchant act for either himself or Beacon Hill? [29] In his skillful argument, Mr. Flannigan asserted that Mr. Merchant’s right to represent himself permits him to representBeacon Hill as he is, in effect, Beacon Hill.

I have already rejected the notion of any “virtual identity” between Mr. Merchant andBeacon Hill and I therefore reject this submission. I am bolstered in my decision by the judgment of Master Hanebury in Drucker v. KPManufacturers (Calgary) Ltd., 2006 ABQB 644, 399 A.R. 398. In that case, a layperson purported to file pleadings on behalf of hercorporation. Master Hanebury held that the pleadings must be struck on the grounds that the Rules of Court and the Legal Profession Act,R.S.A. 2000, c. L-8 permit pleadings to be filed on behalf of a corporation only by a lawyer. Of course, Mr.

Merchant is indeed a lawyer.Nevertheless, the case supports the proposition that an individual’s right to self-representation does not extend to that individual’scorporation, no matter how closely owned. [30] Having dispensed with that argument, it seems to me that allowing Mr. Merchant to represent Beacon Hill would bring ussquarely into the Northway situation described above. Mr. Merchant would be acting as both counsel and witness for Beacon Hill inlitigation in which his testimony would be both crucial and contested. That situation cannot be permitted.

Further, like the Court inNorthway, I am not prepared to allow that situation to continue pending trial. I am satisfied that the preservation of the integrity of theadministration of justice requires that Mr. Merchant be prohibited from representing Beacon Hill in this matter. [31] This leaves the question of whether Mr. Merchant has the right to represent himself. [32] The right to represent one’s self has always been important and is enshrined in the Alberta Rules of Court, A.R. 124/2010.

Ournewly enacted Rule 2.22 provides that “Individuals may represent themselves in an action unless these rules otherwise provide.” Whyshould a person be deprived of this right simply because he is a lawyer? There is nothing in the Rules of Court that so provides. Could alawyer simply say that in acting for himself, he is acting only in his capacity as a party and not as a barrister and solicitor? [33] Lawyers are not prohibited from being their own counsel as parties to a proceeding: Brogan v. Walker, 2001 NSSC 53, 193N.S.R. (2d) 154 at para. 18.

However, a lawyer’s right of self-representation is not unqualified. Even when appearing on their ownbehalf, lawyers are still bound by the relevant codes of ethics and professional responsibility. A practicing lawyer who represents himselfin a court of law is to conduct himself in a manner consistent with that expected of a member of the Law Society and with his status as anofficer of the court gained from that membership: Parkridge Homes Ltd. v. Anglin, [1996] A.J. No. 768 (Alta. Q.B.) at paras. 32 and 33;Collins v. Collins, 1999 ABQB 707, 256 A.R. 311 at para. 26. [34] In Ritchot v.

The Law Society of Manitoba, 2010 MBCA 13, 251 Man.R. (2d) 121, the Manitoba Court of Appeal at paras. 42-47 upheld the decision of the Law Society of Manitoba that Ritchot, a lawyer, was subject to the Manitoba Code of Professional Conductnotwithstanding that she was engaged in her own representation. In the result, the Court upheld the Law Society’s finding that Ritchotwas guilty of conduct unbecoming a lawyer. [35] The court’s inherent jurisdiction to remove counsel, as well as the standard required to do so, was discussed by the Court inEveringham v. Ont. (1992), (ON SC), 8 O.R. (3d) 121(Gen. Div. [Div.

Ct.]). In that case, there was no question of aconflict of interest. The facts were that a number of patients confined to a mental hospital applied for declarations that certain of theirrights had been infringed. A Crown solicitor who was touring the hospital had a conversation with one of those patients in the absence ofthat patient’s counsel. Though no confidential information was obtained in that conversation, the Court held that it was necessary toremove the solicitor. The Court held as follows at paras. 27-29:

It is within the inherent jurisdiction of a superior court to deny the right of audience to counsel when the interests of justice so require by reason of conflict or otherwise. This power does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached. The issue here is not whether or not the rule was breached or whether the solicitor worked for the government. Nor is it solely whether the patient lost confidence in the process.

The issue is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor. [Emphasis added.] [ 36 ] It seems reasonable to conclude that circumstances could arise where a lawyer’s breach of professional ethics would cause a fair-minded, reasonably informed member of the public to conclude that the proper administration of justice required the removal of the solicitor, even in a case where that solicitor represented only himself.

Those who have been entrusted with the title of lawyer, barrister or solicitor, and the powers thereof should not be allowed to ignore their duties as officers of the court simply because they are self- represented litigants. [ 37 ] This raises the somewhat thorny question of how that removal would be effected. Clearly, the question is substantially simpler when parties and counsel are separate individuals. If counsel is removed, the party may choose to obtain replacement counsel or to represent himself. But how is a solicitor who is himself the party to be removed?

The Court in Everingham refers to denying the right of audience. The court, as part of its inherent right to control its own process, may deny the right of audience, that is, the right to be heard, to a self-represented solicitor when, to return to the phraseology in Forward , “the preservation of the integrity of the system of justice” so requires. In light of my decision below, I need not determine how this would be carried out in practice. [ 38 ] Based on the above, it is clear the starting point is that Mr. Merchant does have a right to represent himself.

However, he is bound by the Law Society of Alberta’s Code of Professional Conduct . [ 39 ] Although, surely, the Memo exemplifies the sort of conduct that raises questions about the propriety of Mr. Merchant acting as counsel, this Court has previously put that matter to rest. The Memo was produced pursuant to a Court order. Certainly, the Memo should not have been written at all but, having been written, it ought to have been produced without the necessity of a Court order. However, that was then and this is now. I am not prepared to bar Mr.

Merchant from representing himself on the basis of a matter that has already been adjudicated upon. Therefore, Mr. Merchant is permitted at this time to represent himself. [ 40 ] However, I want to make it clear that this circumstance is subject to re-evaluation if and when necessary. Although certainly I question the wisdom of Mr. Merchant representing himself, I have not been presented with evidence to justify denying him this right at this time. However, if such evidence is forthcoming as this matter unfolds, it will be duly considered and the question re-evaluated. VII. Conclusion [ 41 ] I conclude that Mr.

Merchant is not prohibited from acting for himself. However, Mr. Merchant is prohibited from acting for Beacon Hill. MLG is prohibited from acting for either Mr. Merchant or Beacon Hill in this matter. Counsel may speak to costs. Heard on the 31 st day of May, 2010. Dated at the City of Calgary, Alberta this 7 th day of March, 2011.

A.D. Macleod J.C.Q.B.A. Appearances: Bryan C. Duguid Raymond Bestedo for the Plaintiff Shaun Flannigan for the Defendants