Wednesday, December 16, 2015

Another Chapter in the Mehedi v. Job Success Saga

More than a year ago, I posted about the case of Mehedi v. 2052761, involving an individual suing a company called "Job Success" for fraud - basically alleging that he paid them a lot of money for them to find a job, with guaranteed results which never materialized.

A brief overview of the procedural background:  It went to trial in 2011, and the judge accepted the defence evidence that there were no specific guarantees made.  Mehedi appealed, and in January 2012 the appeal was dismissed.  In February 2012, CBC ran a "Marketplace" segment about a related company to Job Success, going undercover with hidden cameras, and caught the same people who testified in the 2011 trial making exactly the kinds of guarantees which they had testified they don't make.

Ever call a telecom company and end up getting bounced from department to department, repeatedly, sometimes back to one you've already talked to, having to wait on hold for hours each time?  Imagine that you're on hold for months, and that's basically what happened next to Mehedi.

Self-represented, he brought a motion for judgment in March 2012.  This was the wrong move; the motion judge concluded that he needed to have the trial judgment set aside first, and suggested he obtain legal advice.  He obtained legal advice recommending that he try to file a motion to lead new evidence before the same trial judge, so he wrote to the judge.  He then received a letter advising that it was inappropriate to communicate with the judge directly, directing him to schedule the motion through the Court Registry.  The scheduling office told him that they didn't know the specific judges' schedules, and suggested that he obtain dates directly from the trial judge's office.  He went back to a lawyer at this point, who contacted the trial judge's assistant in late November 2012 to obtain dates - but unfortunately the trial judge was not sitting in civil court in the foreseeable future.  The assistant suggested bringing a motion to the Superior Court (before a judge to be assigned) to introduce new evidence.

So Mehedi brought a motion in March 2013, which was adjourned twice, eventually being heard in May 2014.  The Superior Court's answer?  Because the matter had gone to the Court of Appeal, the motion should be made at the Court of Appeal level.

So Mehedi followed that direction, and brought a similar motion at the Court of Appeal - heard in July 2014.  The Court's conclusion:  "Regretting the inconvenience Mr. Mehedi has encountered, I conclude that his motion to introduce new evidence should be brought in the Superior Court before a motions judge in the ordinary way."  Again.

The new development is that Mr. Mehedi brought his motion, which was heard by Justice Whitaker in November 2014.  Justice Whitaker dismissed the motion with very brief reasons, finding that he wasn't convinced that the new evidence would have made a difference in the overall disposition of the case.

So...back to the Court of Appeal, which released a new decision in October 2015, allowing the appeal.

While there's some interesting (from a lawyer's perspective) discussion of the appropriate test, the Court of Appeal was of the view that the test was satisfied either way (and that Justice Whitaker's reasons on the issue were not adequate).  The Court of Appeal re-opened the trial and remitted the matter back to the trial judge for consideration of the admissibility and impact of the new evidence.


Reopening a trial after a decision has been rendered is highly exceptional:  There's a significant interest in finality, so the courts don't do it lightly.

But this factual situation is very unusual.

On the appeal, there was some debate as to the appropriate test to be applied.  It looks, though, like the Court downplayed the differences between the tests.

The Baetz test looks at whether the new evidence could reasonably have been obtained for trial, along with various other factors such as whether or not the moving party delayed in bringing the motion and the overall fairness to the parties and those who have acted in reliance on the judgment, in the circumstances.

The Sagaz test is often formulated with two questions:
(1)  Could the evidence have reasonably been obtained for use at trial?
(2)  Could the evidence reasonably have affected the outcome of the trial?

However, there are other comments in the Sagaz decision which allude to general fairness principles, as well as specific concerns about reliability of the evidence.  The Court of Appeal appears to question how much of a difference there really is between the two tests at all.

And, either way, it does indeed seem that the test is made out:  The new evidence was released by a third party after the hearing of the appeal, so it certainly wasn't available to Mehedi.  It certainly could have affected the outcome of the trial, which hinged in large part on the trial judge regarding it as "unrealistic and unreasonable" that the defendants might have made the promises which they were alleged to make; the trial judge would have had cause to rethink that conclusion if he saw this video evidence of them making similar representations to others.

And in terms of the general fairness issues, the delays were not Mehedi's fault; he began seeking this relief immediately when the evidence became available, and a very short period of time after the original appeal.

Interestingly, the Court of Appeal referred to the Irving Shipbuilding Inc. v. Schmidt case (where the employer improperly obtained an Anton Pillar Order against an employee, and proceeded to ransack the employee's home) as a precedent for the test.  If you'll recall my commentary on the motion to introduce fresh evidence in Schmidt, I referred to the Mehedi fact pattern as an "excellent example" of a case where the evidence couldn't have been available at the hearing.

Lessons Learned

I have a great deal of sympathy for the ordeal that the system put Mr. Mehedi through.  It's hard to excuse the different courts disagreeing as to the correct procedure; with increasing numbers of self-represented litigants trying to access the legal process, it's hard to excuse a process so complicated that the courts themselves can't parse it.

That being said, it may have been much smoother had Mr. Mehedi had the assistance of counsel throughout.  More thorough legal submissions to Justice Whitaker may have made a difference, eliminating the need for this appeal.  A lawyer might have been better-positioned to convince the Superior Court, on the first attempt at the motion, that it had jurisdiction to hear the motion notwithstanding the earlier appeal.  (Whenever you're seeking unusual relief at court, you're likely to hear the question, "Where do I draw the jurisdiction to grant the relief you're seeking?"  If you can't answer that question - and sometimes it's a very legally sophisticated question - then you're in trouble.)

Better advice, earlier, would certainly have prevented him from bringing the doomed motion for judgment without first moving to admit the new evidence.

There are times when lawyers and judges can legitimately disagree amongst themselves as to how an issue should move forward.  If lawyers always agreed on everything, we wouldn't need judges.  If judges always agreed on everything, we wouldn't need appeals.  As a lawyer, sometimes I have to make a decision on process, and then I have to defend that choice.  In the absence of a cogent justification for a procedural decision, it's easier for an adjudicator to say "You chose...poorly" and dismiss the proceeding than it is for the adjudicator to find a way to grant the relief.

Consider my recent post about Finney v. Cepovski, where the Landlord Tenant Board said (to paraphrase) "We can't award damages for utilities", so the landlord went to the Small Claims Court instead, which said "They were wrong; that process was the right one, and so the court can't help you."  At the LTB, I would have strenuously argued about jurisdiction, and may well have caused the adjudicator to think twice about declining to award damages.  Coming out of the unsuccessful LTB hearing, I would have suggested judicial review at the Divisional Court instead of a Small Claims Court action (which would have been the better avenue).  But even at the Small Claims Court, I'd have had arguments up my sleeve to try to convince the Deputy Judge to take jurisdiction anyways.

Sometimes, even with a lawyer, you still get locked out.  But it's less likely.  You're more likely to choose an available course of action in the first place with good legal advice, and more likely to be able to convince the applicable adjudicator that, in fact, the course you have chosen is the correct one.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.

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