JD1H1 et. al. v Budden, 2019 NUCA 4

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: JD1H1 et. al. v Budden, 2019 NUCA 4 Date : 2019-09-19 Docket: 08-18-007-CAC Registry : Iqaluit Between: JD1HI, JD2HI, JD3HI, JD4HI, JD5HI, JD6HI, JD7HI, JD8HI, JD9HI, JD10HI, JD11HI, JD12HI, JD13HI, JD14HI, JD15HI, JD16HI, JD17HI, JD18HI, JD19HI, JD20HI, JD21HI, JD22HI, JD23HI, JD24HI, JD25HI, JD26HI, JD27HI, JD28HI, JD29HI, JD30HI, JD31HI, JD32HI, JD33HI, JD34HI, JD35HI, JD36HI, JD37HI, JD38HI, JD39HI, JD40HI, JD41HI, JD42HI, JD43HI, JD44HI, JD45HI, JD46HI, JD47HI, JD48HI, JD49HI, JD50HI, JD51HI, JD52HI, JD53HI, JD54HI, JD55HI, JD56HI, JD57HI, JD58HI, JD59HI, JD60HI, JD61HI, JD1HII, JD2HII, JD3HII, JD4HII, JD5HII, JD6HII, JD7HII, JD8HII, JD9HII, JD10HII, JD11HII, JD12HII, JD13HII, JD14HII, JD15HII, JD16HII, JD17HII, JDI8HII, JD19HII, JD20HII, JD21HII, JD22HII, JD23HII, JD24HII, JD25HII, JD26HII, JD27HII, JD28HII, JD29HII, JD30HII, JD31HII, JD32HII, JD33HII, JD34HII, JD35HII, JD36HII,JD37HII, JD38HII, JD39HII, JD40HII, JD41HII, JD42HII, JD43HII, JD44HII, JD45HII, JD46HII, JD47HII, JD48HII, JD49HII, JD50HII, JD51HII, JD52HII, JD53HII, JD54HII, JD55HII, JD56HII, JD57HII, JD1HIII, JD2HIII, JD3HIII, JD4HIII, JD1HIV, JD2HIV, JD1A, JD2A, JD3A, JD4A, JD1HUK, JD2HUK, JD3HUK, JD4HUK, JD5HUK, JD6HUK, JD7HUK, JD8HUK, JD9HUK, JD10HUK, JD11HUK Not Parties to Application (Plaintiffs/Not Parties to Appeal) -and- Geoffrey E.

Budden and Stuart A. Morris and Geoffrey E. Budden and Stuart A. Morris cob. as Budden Morris Law Offices, “Budden Morris”, or “Budden, Morris Barristers & Solicitors,” or “Budden, Morris Law Offices of Mount Pearl, Newfoundland and Labrador” Respondents (Defendants/Respondents) -and- Ahlstrom Wright Oliver & Cooper LLP Applicant (Third Party/Appellant)

____________________________________________________________ The Court : The Honourable Mr. Justice Frans Slatter Memorandum of Judgment Interlocutory Application on an appeal of the judgment of the Honourable Mr. Justice Paul Bychok MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) [ 1 ] This is an application for advice and directions with respect to the conduct of this appeal. The circumstances are unusual. [ 2 ] The plaintiffs in this action, who are identified by pseudonyms only, originally retained the respondent Budden Morris Law Offices to sue the government.

The cause of action related to historic sexual assaults by a teacher and a social worker. Budden Morris negotiated settlements of those actions. [ 3 ] The plaintiffs then commenced this second action. In this action they allege that Budden Morris failed to properly account for settlement funds received, and otherwise did not discharge their duties as lawyers. In this action the plaintiffs are represented by the appellants, Ahlstrom Wright Oliver & Cooper LLP.

One particular of the claim is that Budden Morris withheld Harmonized Sales Tax from the settlement funds, when no such tax was in fact payable. [ 4 ] The matter became complicated when Budden Morris issued a Third Party Notice against Ahlstrom Wright. The Third Party Notice denied any negligent provision of legal services, but in the alternative pleaded that Ahlstrom Wright should contribute to the plaintiffs’ damages. The Third Party Notice claimed contribution, because it alleged that Ahlstrom Wright was negligent in not claiming back the HST before the limitation period for doing so expired.

Ahlstrom Wright became, at the same time, counsel for the plaintiffs and a third party in the action. The action is now similar to what happened in Hengeveld v The Personal Insurance Company , 2019 ONCA 497 . [ 5 ] McLennan Ross LLP, representing the interests of Ahlstrom Wright (not the plaintiffs), brought an application to strike out the Third Party Notice. The plaintiffs were not initially served with that application. The chambers judge directed that efforts be made to serve the plaintiffs, and many were, but the chambers judge was not satisfied, and attempted service of a Court Notice on the plaintiffs.

The chambers judge also declared that Ahlstrom Wright was in a conflict of interest so long as the Third Party Notice was outstanding,

and it could not represent the plaintiffs: JD1HI v Budden , 2018 NUCJ 15 . This appeal is from the order declining to strike out the Third Party Notice. [ 6 ] The appellant Ahlstrom Wright, on the direction of the Chief Justice, now asks for advice and direction respecting whether the plaintiffs should be served with the appeal materials, and if so how. Many of the plaintiffs reside in remote northern communities, their addresses are not necessarily known, some are illiterate, and Internet access is problematic. The appeal materials are voluminous, and the cost of postage would be significant.

The respondents submit that every plaintiff is entitled to be served with some notice of the appeal materials. [ 7 ] Counsel provided comments on draft case management directions for this appeal, which I have considered. I am not concerned that posting material on Facebook will pose an unreasonable risk of identifying the plaintiffs, as the materials to date only use pseudonyms. It is imperative that the appeal be heard on February 11, 2020, as there has already been troubling delay. Accordingly, an amicus curiae who is available on February 11, 2020 must be identified.

That counsel can appear by telephone conference, but if no one is available the appeal should likely proceed without involvement of an amicus curiae . If that situation arises, counsel should seek further directions. [ 8 ] It is not prudent to extend the deadlines to the extent requested. If an individual plaintiff seeks to retain counsel or become involved as late as December 15, 2019, that will create a risk of adjournment. Counsel for the respondents should not communicate with the plaintiffs, other than to merely mail copies of the respondents’ materials as required.

Further, counsel for the respondents has no sufficient interest in communications between the third party and their clients, and the final form of the letter will remain in the discretion of counsel for the appellant, although a copy should be provided to respondents’ counsel. [ 9 ] Service of paper copies of all the appeal materials on every plaintiff is impractical and disproportionate to the benefits. It is unlikely that any of them will actively participate in the appeal. Accordingly:

a) The appellant should give as many plaintiffs as possible notice of the appeal, by way of a concise letter, sent by ordinary mail to their last known address, explaining the issue to be resolved by the appeal. If counsel is aware of a current email address (or other electronic portal) for any plaintiff, that may be used in lieu of ordinary mail. Counsel for the appellant is to draft that letter. The respondents will have 10 days to comment on the draft, but the final version of the draft is in the sole discretion of counsel for the appellant.

The letter should confirm that each plaintiff is entitled to retain his own lawyer to represent his interests in the appeal, but that they are not obliged to do so. The letter should attach a copy of para. 9 of these directions, but need not include other materials, such as the reasons under appeal.

b) Counsel for the appellant should use reasonable efforts to identify an amicus curiae (friend of the court), to be retained at the appellant’s expense, to represent the interest of the plaintiffs at the oral argument. A copy of the retainer letter should be sent to respondents’ counsel. The fees and expenses of the friend of the court may be an assessable disbursement, in the discretion of the panel that hears the oral argument. The friend of the court may file a factum if he or she chooses, but is not obliged to do so.

c) Steps must be taken to make the appeal materials available to any plaintiff who wants to review them. The covering letter should indicate how and where those appeal materials can be found: 1) Counsel must post copies of the appellant’s appeal materials on a suitable private electronic platform, such as Facebook. Other filed material should be posted as it is filed. 2) Any plaintiff will have the right to receive a set of the appellant’s appeal materials by sending $5 to cover shipping costs to appellant’s counsel, together with a mailing address, provided that request is made no later than November 15, 2019.

Counsel for the appellant will at a suitable point in time provide to counsel for the respondents the addresses of those who have requested a paper copy of the appellant’s appeal materials, and the respondent must send a copy of the respondents’ appeal materials to them by ordinary mail. 3) Counsel should consider reasonably other requests for access to the filed materials.

d) The following deadlines are confirmed: 1) The Appeal Record, transcripts, appellant’s factum, and appellant’s extracts of key evidence have already been filed. 2) Filing of the respondents’ factum and extracts of key evidence - September 19, 2019.

3) Filing of the friend of the court’s factum, if any - December 15, 2019. 4) Oral argument of the appeal - February 11, 2020.

e) Counsel for the appellant may contact and communicate with the plaintiffs as reasonably required to perfect this appeal, notwithstanding any direction of the trial court limiting communication with the plaintiffs. [ 10 ] Counsel may contact me, through the Iqaluit Registry, if further directions are required. Application heard on September 16, 2019 Memorandum filed at Iqaluit, Nunavut This 19th day of September, 2019 ______________________ Slatter J.A. Appearances: T. Kruger for the Respondents J.P. Rossall, Q.C. for the Applicant