Unusual for party to claim ineffective assistance by counsel on appeal with the same counsel: lawyer
The Court of Appeal has dismissed an appeal arising out of a dispute between an Ottawa-area indoor soccer and sports centre and a number of soccer leagues, in a case in which the appellant accused the trial judge and local judiciary of ethnicity-based bias, and his counsel – who also represented him on appeal – of ineffective legal assistance.
The dispute in OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520 began in 2004 and stemmed from three incidents which occurred the year before.
The Ottawa Wizards were a soccer club in the Canadian Professional Soccer League and their home field was OZ Optics Stadium. In 2003, the Wizards applied to the Ontario Soccer Association (OSA) to host an invitational tournament but were rejected. Then, after the Canadian Soccer Association (CSA) issued them International Transfer Certificates, two Wizards players left the team to return to Malawi. Finally, the Eastern Ontario District Soccer Association (EODSA) made public that the OZ Dome Sports Club had not applied to operate an indoor soccer league for the 2003-2004 season and warned of the possible consequences of unsanctioned competition at the club.
OZ Merchandising brought claims of negligence and intentional interference with its economic interests against each the OSA, CSA and EODSA.
The fundamental issue at trial was whether there was a relationship between OZ Merchandising and its associated entities, and the respondent soccer leagues, says Jordan Goldblatt, founding partner at Adair Goldblatt Bieber LLP, who acted for the EODSA and the OSA.
After a nine-week trial, Superior Court Justice Robyn Ryan Bell struck the jury, determining the plaintiff’s closing submissions were inappropriate, then decided the legal and factual issues on her own, says Goldblatt. On the negligence claim, Justice Bell ruled OZ Merchandising was unable to show a duty of care existed or that it was breached. On the intentional interference with economic interests claim, there was no evidence the respondents intended economic harm. In both areas, OZ Merchandising did not prove any damages, found Justice Bell.
OZ Merchandising appealed on “dozens” of grounds, which fell into four categories, said the Court of Appeal. First, the appellant alleged errors of fact and law on the negligence ruling and evidentiary and procedural errors that made the trial unfair. Both grounds were dismissed.
OZ Merchandising also alleged ineffective assistance of counsel during the trial and submitted it was the victim of bias, from Justice Bell and the “local judiciary.”
“It is unfortunately necessary to comment on the manner in which this appeal has been perfected and presented,” said the Court.
OZ Merchandising’s factum addressed “several, but far from all of the grounds” listed in the notice and amended notice of appeal. It also brought what it called a fresh evidence application, the vast majority of which was not fresh evidence, but arguments based on the trial record – mostly arguments which had been made and rejected at trial. Within the application was a motion record, which contained two affidavits, one prepared by a paralegal and the other by Omur Sezerman, president of OZ Merchandising. Though the Court said he directed the litigation, Sezerman is not a lawyer.
OZ Merchandising also sought leave to file a 500-page factum, which the appellant said could be reduced to around 125 pages. The Court said it agreed with opposing counsel that the fresh evidence motion was “a transparent attempt” to evade the Court of Appeal practice direction’s 30-page limit on facta, as well as the Court’s refusal of leave to file an extended factum.
While the Court said it would be appropriate not to get into the arguments contained in the fresh evidence application, it decided to address the merits of two of the arguments – bias and ineffective assistance by trial counsel – because they “affect matters relevant to the proper administration of justice.”
“The Court of Appeal confirmed that the allegation of the incompetence of counsel should not be visited on the opposing party in civil matters except in cases in which the nature of the claim gives rise to a public interest that transcends the private interest of the litigants,” says Andrew Lee of Bell Temple LLP, who represented the CSA.
The Court said there was no merit to the claim of ineffective counsel. The evidence in support of the claim in Sezerman’s affidavit was mostly complaints about the trial judge. Many of the allegations were “bald statements with no reference to the actual trial record” and others refer to the lawyer’s abiding by Justice Bell’s rulings, rather than Sezerman’s instructions to the contrary. “Most importantly,” said the Court, “although Mr. Sezerman asserts that his lawyer’s conduct ‘fell below the standard of reasonable professional judgment,’ Mr. Sezerman offers no admissible evidence in support of that opinion.”
Not a lawyer himself, Sezerman “is not qualified to opine” that another lawyer’s conduct was beneath the accepted standard, said the Court, adding “Mr. Sezerman’s opinion is inadmissible.”
But even if he were qualified, Sezerman’s opinion is wrong, said the Court. Counsel’s admissions, which Sezerman deemed negligent, were “reasonable and consistent with the applicable procedural and evidentiary law” and Justice Bell would have ruled as she did, regardless.
“It's a bit of an unusual situation where you have a plaintiff saying, ‘My lawyer was ineffective and didn't know what they were doing at trial,’” says Goldblatt. “And then you have the same lawyer who is going to be presenting that argument at the Court of Appeal.”
When it came to the bias allegations, OZ Merchandising had brought a motion at trial asking Justice Bell to recuse herself for reasonable apprehension of bias. Later, the plaintiff brought a motion for mistrial, citing actual and reasonable apprehension of bias. Both claims were rooted in the judge’s alleged errors and “demeanour in the course of the proceeding.”
On appeal, OZ Merchandising included the allegations in its fresh evidence material. The Court said, the claims of bias, contained in Sezerman’s and his paralegal’s affidavits can be organized into three areas: bias of the trial judge, institutional bias among the local judiciary and bias based on Sezerman’s ethnic background.
The arguments against Justice Bell rested on two false premises, said the Court. If Justice Bell made the errors OZ Merchandising alleged, that would not demonstrate bias. The appellant also failed to show any substantive error in the rulings or unfairness in the process. Similarly, the claim of institutional bias was found “baseless” by the Court.
The charges of bias include insinuations that Sezerman’s ethnicity played a role in the alleged bias by Justice Bell. Sezerman claimed “the trial judge took a personal dislike to him because he was an immigrant whose ethnic background and passion for the justice of his cause caused him to conduct himself in court in a manner which the trial judge considered inappropriate and disrespectful,” said the Court, which added nothing on the record supported this allegation.
“Some of the trial judge’s reasons related to Mr. Sezerman’s behaviour in court, however, the trial judge was primarily troubled by Mr. Sezerman’s adamant refusal to abide by rulings made during the trial. The trial record supports the trial judge’s factual findings in this regard,” said the Court.
“I think the Court wants to really send a signal to litigants that these types of allegations are not lightly made,” says Goldblatt.