Born Again Virgins
Rather than agree to my conditional counter-offer to accept $5,301 in settlement of my Small Claims Court claim of $10,000, Rogers sought a motion for summary judgment, arguing that a payment of $5,000 should suffice to make me go away - when conjoined with Ted Rogers' "goodwill payment of $5309.60. To Rogers' lengthy motion record, factum, affidavit, and authorities brief, I filed and served my own factum in response.
So, on October 26, 2006, I sat outside a courtroom at Toronto Small Claims Court and waited for the doors to open.
From that vantage, I watched Joe D'Angelo enter the building across the way where I knew he would take the elevator to the third floor to ask the clerks where the heck the court rooms were. I knew he was Joe D'Angelo because I'd looked up his photo on the Lang Michener web site. And I knew where the courtroom was without asking. I had been here before. Recently. The whole routine didn't seem quite so familiar to Joe.
When Joe returned to wait in the same cramped entrance way a few moments later, he sat at its other end. I approached Joe and introduced myself (though I'm sure he knew who I was because he fessed up, in his factum, to reading this web site avidly, on which a photo of me figures prominently on the home page. I suppose Joe was keeping his distance.)
"It's been a while since you've been in Small Claims Court eh, Joe?" I asked. "I saw you heading up to the third floor to ask where the courts are. What's it been, 16, 17 years?"
"Yeah, about," Joe replied.
Joe's a soft-spoken man, with a gentle demeanour.
Deciphering the Judge
Three hours later, Joe and I and my partner Harry Gefen had sat through three hours of Small Claims Court cases with parties dressed in anything from sweat pants and windbreakers, to Wal-Mart slacks and blouses, to their Sunday best.
One defendant was present with his cousin, who, the defendant explained, was present to give him a bit of support. They both happened to have the same name. They were cousins, they explained to the judge: "I'm Luigi Amano and he's Luigi Amano. We're cousins, see?"
Luigi Amano the cousin did what he could to present Luigi Amano the defendant's case: the offer of settlement that his cousin signed shouldn't be binding because his cousin was dizzy when he signed it, having just been in a car accident. He apologized to the judge and said "I'm sorry your honour. I don't have any training in law. I don't speak very clearly."
To this the judge responded: "Not to worry. You're way more clear than most of the lawyers that appear in front of me."
Another fellow, pleading on behalf of his mother, a defendant up against four collection agencies, argued that his mother didn't have any money to pay. "She's on a pension. She's 62. I've provided a copy of all of her bills and her monthly pension income. She has NO money at the end of each month. This case shouldn't go to trial. I'm telling you now, she can't afford to pay."
"Are you saying that it's OK for people to go out and buy things and then say they can't afford to pay for them because they have no money? Is that your argument? " asked the judge.
"I'm just saying that there's no point in going to trial because my mother can't pay what these guys are asking for. She has no money."
To this the judge responded: "So what you're arguing is that the plaintiffs are not entitled to judgment because the defendant is too poor to pay. But think about it, aren't they're entitled to judgment even if she can't pay? Think of all of those people who want their day in court against Conrad Black. Even if they win, they're not likely ever to collect a penny from him, but they're still entitled to get a judgement ordered against him, aren't they? If she can't pay, she can make that case then, after the plaintiff's get judgment. Do you know of any law that would permit me to do what you're asking me to do?" he asked almost imploring the defendant to give him something with which he could keep the four collection agencies at bay: he had the woman's monthly income and bills in front of him.
"Well this is a court of equity, isn't it? The court is supposed to make orders that are just. It's not just what those guys are doing.!"
"You know," responded the judge beseechingly, "I can agree with you that it's not just, but this is also a court of law. I need some law to make this happen."
"These collection agencies are taking a huge profit from this debt. That shouldn't be right. They should just take what they bought the debt for, 6 years ago, from the original company."
The judge didn't find in this fellow's favour. But when one of the collection agents said they were "not going to show their fangs" and reduce the interest payable on the debt from their regular 28% to 14% percent, the judge said: "Not showing your fangs is cold comfort to the defendant, isn't it?" And the judge set the interest payable on the debt at 6%.
Another case brought a defendant to the bar with her friend. They were up against an insurance company that was demanding payment for damages to another party's car.
"Your honour," interjected the friend, "if I may. I don't understand why the plaintiff is coming after my friend. Doesn't the other party's insurance company pay for the damage to his car? Why is he coming after my friend for the money?"
The judge, gently solicitous, said: "The other guy is not coming after your friend for damages. His insurance company is coming after her. You're up against a big corporation, not the guy whose car got damaged. It's the insurance company that's suing you."
The rest of the docket was crammed with such cases. Unlike Quebec, collections agencies have the right to appear in Small Claims Court; and appear they do.
And unlike Quebec, lawyers also have the right to appear in Small Claims Court; and, sometimes representing large corporate interests, they go up against unrepresented parties, shoulder to bruised shoulder.
Three hours into the afternoon, the judge called our case. "Ah," he said as the bulky file was passed to him. "We've saved the best for last."
Rogers Prefers to Do It with the Lights Out
We were in front of this judge in Small Claims Court on Rogers' motion. As such, Rogers had the opening argument.
But I interrupted the judge before we began and said: "Your honour, I've been instructed by the clerk to bring the following to your attention prior to proceedings:
"Rogers, the Defendant in this case, is being represented by a partner at Lang Michener, the head of Lang Michener's Commercial Litigation Group, a lawyer with 17 years of practice. I, on the other hand, am an unrepresented plaintiff. As I understand the exception to s. 136(1) of the Courts of Justice Act, I am entitled to record these proceedings so long as I restrict myself to using the recordings for the purposes of facilitating hand-taken notes. I'd like to confirm with the court that it is acceptable for me to record the motion proceedings."
At this juncture, Rogers' lawyer rose to his feet and said that he objected to what I was proposing: I had not brought this matter to attention until that very instant. And he objected to me recording the proceedings.
"Mr. D'Angelo," replied the judge. "This is an open court. Anybody from the Canadian public is entitled to be present in this courtroom at this very moment. I don't understand how you could object to the plaintiff's request to record the proceedings."
"The plaintiff has a web site on which she is very likely to broadcast the recording. She has shown herself prepared to use this web site in the past for reporting on this case."
"I'm not convinced by your objection," the judge responded. "We have an open court system in Canada. The plaintiff can record the proceedings."
Ted Was Here
Joe D'Angelo started making his oral arguments, claiming, as per his factum, that I had already accepted a first instalment of $5309.60 from Ted Rogers. Ted Rogers called me at my home December 17, 2005, Joe said, apologized publicly in the media, and offered to pay me for the costs related to my Small Claims Court action.
"Ah," said the judge, smiling. "Ted Rogers called? Ted Rogers was a classmate of mine."
Joe D'Angelo went on to argue that the total claim in my action ($10,000) was therefore paid off by a further $5,000 payment into court.
I started to make my arguments, as per my factum, about the fact that the cheque for $5309.60 was NOT payment in settlement of this Small Claims Court action, but was a goodwill payment, in accord with the terms of the letter that accompanied the cheque.
The judge asked me to reiterate what I was asking for on this claim.
I had assumed that the judge might be aware of my debacle with Rogers, in part because of the notoriety of my case. When Rogers' lawyer was late for our March 1, 2006 pre-trial conference, I had asked the pre-trial judge (a different judge than the trial judge or motion judge) whether he needed me to go through the facts in my case, or whether the judge could take judicial notice of them. "Your case has been spread all over the front page of the Globe and Mail for 8 days running," he responded. "How could I NOT be aware of your story?" Even if this motion judge hadn't heard of my debacle, then I assumed he would be familiar with the case because he had the court records in front of him. Joe D'Angelo had, after all, just spent over $5,000 drafting a factum, motion record, and authorties brief. Hadn't the judge read through all of that material?
In fact the motion judge appeared to be unfamiliar with the case. So while I started talking about fundamental breach of contract, he kept asking for the facts. "What were your damages?" he wanted to know. "Compensatory and punitive," I replied, trying to be helpful.
"No, what did you lose? What are you claiming for?" he asked. "I see your son's cell phone was shut off here, so what are you claiming for as damages?"
"Oh," I replied. "Loss of income. I had to drive my son back and forth to school for several days and therefore lost income."
"You mean you went through some down time? Is that what you mean? For the time you spent driving your son back and forth to school? And you're saying that time was worth $10,000? How do you figure it was worth $10,000?"
"Oh, well I've been engaged in a $66 million class action law suit for the last two years, also covering the period during which I was forced to drive my son to and from school as a result of Rogers' fundamental breach of contract; for that class action law suit, I am entitled to a 20% referral fee and that down time cost me quite a bit of what I could have additionally claimed in a referral fee."
"Oh. I see. Yes. That makes sense, that you lost income as a result of Rogers shutting off your son's cell phone."
The pleadings went back and forth a bit more between Joe and me, both of us elaborating vigorously upon our factums. And then the judge said: "Take a seat. This is going to be longer than I thought. I'm going to clear the docket and then we can set aside an hour to hear the rest of the arguments."
Hard Law v. Soft Law
As our case was temporarily adjourned, I approached Joe and said "Joe, what are your billable hours? $600/hour? $700/hour? Rogers has got to be approaching the full amount of my claim just in legal fees for today's work. Are you sure you don't want to step out in the hallway with me and see if we can settle this by Rogers just simply paying the $10,000 claim?"
Joe declined my offer.
And so, 45 minutes later, there we were again in front of the judge.
"Mr. D'Angelo," the judge asked Rogers' lawyer, "as the plaintiff said, you have 17 years of experience as a lawyer, tell me what the statement of claim is in this case."
"Let's be honest here," Joe slipped in, "the Plaintiff IS a law professor."
"Oh. What kind of law do you teach?" the judge queried.
"Legal anthropology," I replied. "I'm not sure that legal anthropology was being taught at Osgoode when you attended with Ted Rogers."
"Now, now," the judge replied with a smile. "I'm not THAT old. So, Mr. D'Angelo, reiterate for me the statement of claim."
Offending Rogers' unimpeachable honour
Joe briefly reiterated my claim and then went on to say that, in all events, I had made a counter offer to Rogers on October 12, 2006 in which I agreed to accept $5,300 from Rogers - so I was anyhow fully prepared to accept the monetary payment that Rogers was offering into court.
"But she didn't just accept your offer, did she?" asked the judge. "Aren't there conditions attached to her offer?"
"Yes your honour," Joe replied, "But they are not conditions that a court can order, and in any event, the conditions that she attached are by way of an agreed statement of facts. It would be humiliating for Rogers to agree to the statement of facts that she was requesting on her counter-offer."
"Let's be clear then," said the judge. "She didn't accept Rogers' offer unconditionally. Rogers rejected her counter-offer with its conditions."
She can, and she is
The judge turned his attention back to me.
"Haven't you been paid your full claim, Ms. Drummond?" asked the judge.
"No," I argued. "There are two causes of action that are mentioned in my pleadings. One in fundamental breach of contract. The other for breach of a duty of care. I clearly indicate in my pleadings that an action for the latter cause of action is available to me in Superior Court. If Ted Rogers sent anything by way of his "goodwill payment" of $5309.60, he sent me an initial instalment for that action."
"She can't make an argument for two causes of action on these facts, your honour," replied Joe.
"Well she not only can, she is," responded the judge.
"Her argument would be excluded by res judicata," Joe replied.
"That's an argument you would need raise when the issue comes up at trial," replied the judge. "And she's entitled to make the argument that there are two causes of action here; and that leaves room for genuine issues for trial."
Rogers Blows its Wad
"Mr. D'Angelo," the judge concluded. "You're asking me to do something that could cause me a lot of embarrassment. If I say there is no genuine issue for trial, when clearly there are many issues that are unsettled, I would be going way out of a limb only to have the plaintiff argue that there are claims that have not been resolved or addressed. I'm going to dismiss your motion."
Over $5,000 for a factum, motion record, and authorities brief.
And another $5,000 for a partner, with 17 years of practice - the head of Lang Michener's Commercial Litigation Team - to sit in Small Claims court for 4 hours (billable as a day's work) in order to argue about whether payment into court was sufficient at $5,000, as opposed to my conditional monetary counter-offer to accept $5,301.
And...
...Rogers lost its very costly motion.
Rogers blew its motion wad on a summary judgment rather than on a quashing of Ted Rogers' summons to trial - a trial which is still on the Small Claims Court docket, currently scheduled for early February, 2007.