Canadian Lawyer

10 A u g u s t 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m RegIonal wRap-up I n a decision emphasizing counsel's duties around experts, an Ontario Superior Court judge ordered a Toronto lawyer to person- ally pay a portion of his client's costs for wasting time and resources for knowingly using a biased witness eventually removed from the case. Justice Susan Healey ordered lawyer Jeffrey Streisfield to pay $98,000 out of $490,000. In a dispute over land, Streisfield used land sur- veyor Ronald Stewart's expertise when he clearly wasn't an objective witness, according to Healey. Stewart's bias came to light after the claimant, Angelina Bailey, sought to have all e-mail com- munication between the expert and Streisfield revealed to the court. The court made a rare order "based upon the fact that Mr. Stewart's ini- tial evidence under cross-examination conveyed an involvement in the proceeding beyond that expected of an expert witness, and necessitated further exploration of his role in the litigation in order that the court be in a position to properly evaluate his evidence," wrote Healey. The e-mails suggested Stewart "effectively acted as co-counsel and advocate" of the objector, Gerard Barbour, rather than an objective expert witness, the court found. Stewart's e-mails to Streisfield contained questions to put to Bailey to challenge her position. He also called another expert witness' report "a load of BS" and said he "thinks that he can get away with this crap." "It defies reason" that Streisfield "could fail to recognize that the expert was too personally involved to objectively comment upon the other expert's methodology and conclusions," wrote Healey in Bailey v. Barbour. The judge added: "In these circumstances, this is a case where there is no benefit of any doubt that can be given to the lawyer. The evidence is plain and obvious that Mr. Streisfield breached his obligation to the court in using Mr. Stewart, and in doing so he acted in bad faith and was directly responsible for wasting costs. A costs order against him personally is warranted." lawyer ordered To personally pay cosTs over biased wiTness C onservation officer Randy Tippin said he just wanted to ensure a man facing charges under the Fisheries Act knew about a looming deadline to accept or reject a plea offer, but he and the Ontario government have instead ended up on the hook for $10,000 in damages over a voicemail he left for the accused disparag- ing his lawyer. Ontario Superior Court Justice Dan Cornell vindicated the accused man's lawyer, Mary Bird of Thunder Bay, Ont., when he awarded her defamation damages for a voicemail left by Tippin that questioned her competence. "I basically feel your lawyer is pretty much incompetent which is why I'm making this call," said Tippin, who had charged Jarvis Sameluk with three offences under the Fisheries Act several years ago. "I just feel that things have been mishandled grossly up until this point," Tippin later added in his voicemail to Sameluk on March 31, 2006. Tippin, according to Cornell's ruling, was worried about a March 29 deadline to respond to a plea offer from the Crown. On March 30, he spoke with the Crown, who told him his office had provided Bird with a second copy of the letter outlining the plea offer after the first one had been lost. On March 31, he spoke with Sameluk's son, who was also fac- ing Fisheries Act charges and said he knew nothing about the plea offer. The ruling notes Tippin then concluded Sameluk also wasn't aware of the offer despite the fact he and his son had different lawyers. He then called Sameluk's business line informing him of the urgency to respond to the plea offer and making the disparaging remarks about Bird. In fact, Bird had met with Sameluk and he had instructed her not to accept the offer. When Sameluk called Bird after listening to Tippin's message, she told him the letter hadn't been lost; rather, she had asked for another copy as it wasn't easily accessible while she was moving her office. She continued to represent Sameluk through his trial and appeal. Tippin admitted to defaming Bird but asserted the defence of qualified privilege. In ruling against Tippin, Cornell rejected his defence of qualified privilege as well as his assertion that he had a moral duty to call Sameluk given his concern about the status of the plea offer. In doing so, he raised concerns about a peace officer calling the accused directly instead of leaving it to the lawyers to handle the matter. Cornell awarded Bird $10,000 in damages rather than the general damages of $50,000 plus $100,000 to $250,000 in punitive damages she sought. As part of her lawsuit, Bird had claimed Tippin's employer, the Ontario government, was vicariously liable for his actions. Bird told Legal Feeds she has long had concerns about authorities' conduct in the case against her client and had at one point brought an application to stay the charges against him over abuse of process. "This isn't the only conduct involved in this case that was quite frankly outra- geous," she says. "This has gone on for a long, long time." — GLeNN KAuth glenn.kauth@thomsonreuters.com thuNdeR bay lawyeR wiNS $10K damaGeS iN defamatioN Suit

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