In YELLOW PAGES DIGITAL & MEDIA SOLUTIONS v. MASSOUMI ( unreported ) Justice Chalmers had the following fact situation:
1. Claim ( asking for One Million Dollars ) issued and served on Defendant on Day 1.
2. Lawyer for Defendant emails Plaintiff’s counsel on Day 9 and says he is in the process of being retained and wants to talk on the phone .
3. Counsel talk on phone Day 20.
4. Defendant files Defence. on Day 60 and discovers that Plaintiff noted him in default 2 days after their phone call without warning him that he would note him in default.
The Judge not only set aside the default but awarded the Defendant $1,000 in costs, along with these comments:
“I find the conduct of the Plaintiff and ( their lawyer ) to be unacceptable. There is no reason for ( Plaintiff’s lawyer) to have noted the Defendant in default only two days after the deadline for delivering a defence had passed when he knew ( Defendant’s lawyer ) was involved in the action. The fact that ( Plaintiff’s lawyer) proceeded with the noting in default without giving( Defendant’s lawyer) the courtesy of a call is inexplicable. This is not a situation of extended delay.( Plaintiff’s counsel ) had spoken with ( Defence counsel) only two days before. “
When Plaintiff’s counsel tried to justify his actions on the basis that he did not have instructions from his client to do so, this is what the Judge said :
“This is not a reasonable or acceptable excuse. As noted by Myers J. in Strathmillan:
[19] [….] The decision to grant or withhold an accommodation to a colleague opposite is a decision for counsel. Section 47 of the Advocates’ Society’s Principles of Civility and Professionalism for Advocates makes this clear:
[47] Advocates, and not the client, have the sole discretion to determine the accommodations to be granted to opposing counsel and litigants in all matters not directly affecting the merits of the cause or prejudicing the client’s rights. Advocates should not accede to a client’s demands that the advocate act in a discourteous or uncooperative manner.”
For a copy of this case, email me at barry@barryfisher.ca