



COURT OF APPEAL FOR ONTARIO

CITATION: 8150184 Canada Corporation v. Rotisseries Mom's
    Express (Les Rotisseries Mom's Express Limitée), 2016 ONCA 115

DATE: 20160210

DOCKET: C60804

Feldman, MacPherson and Miller JJ.A.

BETWEEN

8150184 Canada Corporation

Plaintiff (Respondent)

and

The Rotisseries Moms Express Limited also known
    as Les Rotisseries Moms Express Limitée,
Ashraf Ahmad
and Pierre McLean

Defendants (
Appellant
)

Ashraf Ahmad, acting in person

David Fogel, for the respondent

Heard: January 25, 2016

On appeal from the judgment of Justice Graham Mew of the Superior
    Court of Justice, dated February 6, 2014.

MacPherson
    J.A.:

[1]

The appellant, Ashraf Ahmad, appeals the judgment of Mew J. of the
    Superior Court of Justice dated February 6, 2014, awarding the respondent
    8150184 Canada Corporation partial judgment of $152,314.44.

[2]

The appellant was the Ontario manager of a Quebec food franchise
    business, The Rotisseries Moms Express Limited. The respondent was a
    franchisee that entered into a franchise agreement with the franchisor. This
    contract was governed by the
Arthur Wishart Act (Franchise Disclosure),
    2000
, S.O. 2000, c. 3 (
AWA
).

[3]

The franchisee brought an action against the corporate franchisor and
    two personal franchisors associates, the appellant and Pierre McLean.

[4]

The defendants hired an Ottawa lawyer, Denis Cadieux, to represent them.
    The instructions he received were that his clients wanted to comply with the
AWA
and would pay any amounts properly owing to the franchisee. Acting on these
    instructions, Mr. Cadieux sent a letter to the plaintiffs counsel, saying in
    part:

We act for the franchisor and the franchisors associates in
    this matter and have in hand your letter of October 25, 2012. While our clients
    deny that they have failed to abide by the disclosure provisions of the Act,
    they agree that your client can rescind the agreement entered into between the
    parties. They also will comply with the Act with regards to refunding the
    franchise fee, the remaining inventory (if any) purchased pursuant to the
    franchise agreement, and any supplies and equipment purchased pursuant to the
    franchise agreement at the statutorily dictated price.

[5]

Unfortunately, the parties were unable to settle their dispute. They
    could not agree on the amount the defendants would pay the plaintiff. A trial
    was set for February 3, 2014.

[6]

On December 31, 2013, the plaintiff served a Notice to Admit on the
    defendants counsel. The defendants did not respond to the Notice to Admit. By
    virtue of rule 51.03 of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, the defendants were deemed to admit the truth of the facts and the
    authenticity of the documents in the request to admit 20 days after the Notice
    to Admit was served, on January 20, 2014.

[7]

The defendants instructions to their counsel, Mr. Cadieux, were that
    they intended to settle with the plaintiff and that they did not want Mr.
    Cadieux to run up legal fees preparing for a trial that would not take place.

[8]

In late January 2014, Mr. Cadieux became concerned as the trial date
    approached. He had trouble contacting the appellant and Mr. McLean, who lived
    in Quebec City. On January 24, Mr. Cadieux sent an email to the appellant and
    Mr. McLean: Gentlemen, you are not returning my phone calls or giving me
    instructions. On January 28, Mr. Cadieux informed his clients that he could no
    longer represent them since you are now apparently in conflict.

[9]

On February 2, 2014, Mr. Cadieux sent another email to his clients:

Gentlemen,

This is simply a reminder that you both have to be in court
    tomorrow morning. Ash, your new potential lawyer will be there on standby to
    tell the judge that if they grant you an adjournment he is willing to take you
    on. Pierre, the lawyer from Quebec City called but he will not attend, and
    would not even give me a letter to confirm that we spoke. I can, however, tell
    the judge that you have consulted other counsel. As indicated previously, this
    is at 10h00 tomorrow, at 393 University Avenue, ct no 704.

You have received my material on Friday. I will explain to the
    Judge that as of last week there is a serious disagreement between both of you
    and in the circumstances I can not act for anyone.

The judge may or may not agree to the adjournment. If he does
    not grant the adjournment he will hear the trial, which may be very short since
    your instructions had always been that you would find the funds to settle all
    actions. You always instructed me to buy you some time, but not to spend your
    resources to fight the trial. We will only know tomorrow morning what will be
    happening, after the Judge makes his initial decision. That means you both have
    to be there, and you may be called upon to testify depending on how things go.

[10]

On
    February 3, Mr. Cadieux appeared in court in Toronto and made a motion to get
    off the record. He also sought an adjournment of the trial so that the
    defendants could instruct two new counsel. Usman Hannan was present in court
    and prepared to go on the record for the appellant. However, he was not able to
    represent him if the trial proceeded that day. The appellant and Mr. McLean did
    not attend court.

[11]

Counsel
    for the plaintiff, Keith Landy and David Fogel, opposed the adjournment request
    and moved for judgment on the basis of the unanswered Notice to Admit.

[12]

The
    trial judge heard extensive submissions on whether the trial should be
    adjourned and about the order in which the two motions should proceed.

[13]

The
    trial judge declared that an adjournment should not be granted:

The trial date in this matter has been set for many months, the
    defendants were aware of it. They were advised to attend in person today when
    last week they were told by Mr. Cadieux that he and his firm would be seeking
    to get off the record.

[14]

Having
    decided against an adjournment, the trial judge then ordered that the
    plaintiffs motion based on the Notice to Admit should proceed first. He
    considered Mr. Cadieuxs awkward position, the defendants non-attendance in
    spite of a strong warning from their counsel, and prejudice to the plaintiff.
    The trial judge observed: I have been wrestling with this one. He concluded:

Taking into account all of that, it seems to me that fairness
    dictates, or at least that the fairest outcome would be that I hear the motion
    based on the request to admit. I will, as I have indicated, grant the motion by
    the defendants lawyers to get off the record, that order will take effect as
    soon as the motion on the request to admit has been heard. If the motion does
    not dispose of all issues, I will adjourn the trial so that the defendants have
    the opportunity to appoint new lawyers and I will adjourn it to an appropriate
    Monday to be spoken to in court, so that whoever the new lawyers are can
    discuss the appropriate trial date with the court.

[15]

The
    motion based on the Notice to Admit then proceeded. Mr. Cadieux stayed in the
    courtroom and represented the defendants.

[16]

The
    trial judge rendered partial judgment for $152,314.44 in favour of the
    plaintiff. This award represented amounts which have been quantified in the
    request to admit
and
which are corroborated by
    appropriate documentation (emphasis in original), less amounts already paid by
    the defendants.

[17]

However,
    the trial judge did not grant judgment on several other items that had been
    included in the Notice to Admit, including salaries for the plaintiffs
    principals, meal and car expenses, lost profits, and certain categories of
    damages. He ordered that these claims proceed to trial. He adjourned the trial
    and directed that it be spoken to on March 17, 2014.

[18]

The
    appellant appeals on two grounds.

[19]

First,
    the appellant contends that the trial judge erred by not permitting his counsel
    to get off the record at the commencement of the trial and by not granting the
    appellants request for an adjournment to enable him to retain and instruct new
    counsel.

[20]

I
    do not accept this submission. The decision to adjourn a hearing is a
    discretionary one: see
Khimji v. Dhanani
(2004), 69 O.R. (3d) 790
    (C.A.). It is, therefore, entitled to deference.

[21]

I
    can see no reason for interfering with the trial judges exercise of discretion
    in this case. The trial date was well-known to the appellant. The day before
    the hearing, his counsel advised him to attend in person. He also described the
    various scenarios, including [t]he trial judge may or may not agree to the
    adjournment. Thus, the appellant chose not to attend his own trial with his
    eyes wide open.

[22]

In
    addition, the appellants counsel remained in court and represented his client
    on the plaintiffs motion grounded in the Notice to Admit. The trial judge said
    this about Mr. Cadieuxs representation:

[I]n the face of my decision to hear the motion on the request
    to admit, despite his desire to be removed from the record, counsel (Mr.
    Cadieux) diligently, creditably and effectively represented the defendants
    interests on the motion.

[23]

Finally,
    the result of the first motion strikes me as a fair result. The trial judge
    ordered recovery for the plaintiff based on the unanswered Notice to Admit only
    on what he called hard expenses, namely, those expenses corroborated by
    appropriate documentation. For other expenses, where documentation was lacking,
    he ordered that they be assessed at trial and he adjourned the matter to permit
    the appellant to engage new counsel.

[24]

Second,
    the appellant asserts that he received ineffective assistance from his counsel
    in the proceedings that culminated in the partial judgment against him.

[25]

Ineffective
    assistance of counsel claims in civil cases are unusual and only available in
    the rarest of cases:
D.W. v. White
(2004), 189 O.A.C. 256, at para.
    55, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 486. The appellant
    has not met this high burden.

[26]

There
    is a solid documentary record that speaks to this issue, including an affidavit
    by Mr. Cadieux and the trial judges comment in his reasons (set out above).
    Mr. Cadieux represented his clients faithfully and in accordance with their
    instructions. He also stayed and represented them on the first motion before he
    was allowed to get off the record. The problem in late January in the run-up to
    the trial set for February 3, 2014 was not created by Mr. Cadieuxs efforts;
    rather, the problem was the appellants unwillingness to communicate with his
    counsel at a crucial time coupled with an apparent late-breaking falling out
    between the appellant and Mr. McLean. In my view, the trial judges favourable
    comment about the quality of Mr. Cadieuxs representation of the appellant at
    the hearing is equally applicable to Mr. Cadieuxs pre-hearing representation
    of the appellant.

[27]

I
    would dismiss the appeal. I would award costs to the respondent fixed at
    $4,500, inclusive of disbursements and HST.

Released: February 10, 2016 (J.C.M.)

J.C. MacPherson J.A.

I agree. K. Feldman J.A.

I agree. B.W. Miller J.A.


