‘Scorched earth’ tactics backfire on children’s aid society in historic sexual assault case
An Ontario judge has refused to dismiss a historic sexual assault claim against a children’s aid society after concluding that the latest hold-ups in the case were largely a result of the agency’s “scorched earth” litigation tactics.
Tamara Slota, the plaintiff in Slota v. Kenora-Rainy River Districts Child and Family Services, launched her action in 2013 against the Keonra CFS and her former foster parents – Emile and Betty Janke – alleging that she was sexually abused by the now-deceased Emile in the early 1980s.
According to Ontario Superior Court Justice Frederick Myers’ judgment, things had not progressed quickly before a contested status hearing in 2018, at which the plaintiff was “thrown a lifeline” by Justice Jessica Kimmel, who set a December 2019 deadline for her to set the action down for trial.
However, the plaintiff’s lawyer then made what Justice Myers called a “poor decision,” refusing to make her client available for a scheduled examination for discovery.
“The ensuing motion process has disclosed what can only be called ‘scorched earth’ tactics by the CFS. It has done nothing illegal. But it spares no effort or expense to bring every proceeding, to make every objection, to jump to every negative inference or theory, and to make every argument to hinder, hamper, and delay the efficient and fair hearing of the plaintiff’s claim that she was sexually assaulted,” Justice Myers wrote. “They have succeeded in preventing the litigation from moving forward. And now the CFS and Ms. Janke seek to use that further delay to terminate the lawsuit on procedural grounds so Ms. Slota never gets to be heard in a courtroom.”
But the judge was not having any of it, ordering the matter into case management, with a new December 2021 deadline to set it down for trial.
“The aim of procedural rules is to ensure that disputes are resolved fairly including as quickly and cheaply as is reasonably possible in the circumstances of each case. They are not intended to be weapons to cause delay and prevent fair hearings. Although this is a second chance case, I do not see this as a case where dismissal promotes the goals of fairness, efficiency, and affordability,” Justice Myers concluded.
“While I am critical of the plaintiff’s lawyer’s decision to unilaterally cancel the examination of her client, it was the scorched earth tactics of the CFS supported by Mrs. Janke that have prevented the action from moving forward. To reward such an ignoble quest would cause far greater harm to the plaintiff and to the administration of civil justice than the negligible harm to the CFS and Ms. Janke of forgiving a tactical mis-step by the plaintiff’s lawyer,” he added.
Bill Leonard, the executive director of the Kenora CFS, said in a statement that the decision is under appeal.
“As I’m sure you can understand, it would be inappropriate for me to comment further,” he added.
According to the ruling, plaintiff counsel’s examinations misjudgment was compounded by an illness that kept her off work for more than a year, forcing her busy law partner to take over carriage.
The judge wrote that he could not blame the new lawyer for missing the December 2019 deadline set by Justice Kimmel, in light of the unforeseen illness of her law partner, as well as the Kenora CFS’s motion to change venue and its threat of summary judgment motions.
Although the plaintiff’s withdrawal from examinations was not justified, Justice Myers found that the defendants had not suffered any actual prejudice to their ability to present their cases, since three recently deceased witnesses would have died before the matter got to trial, even if it had been set down on deadline.
“If the CFS had truly wanted the evidence of these possible witnesses for the trial, it would have preserved their evidence already. It knew of them; it knew how to do so,” the decision reads. “Given that Kimmel J. already found that the CFS bears some responsibility to collect and preserve its evidence, the fact that it did not do so leads me to believe that tactically, it preferred to allow possible witnesses to age or pass without preserving their testimony so as to bolster an argument of prejudice.”
Justice Myers wrote that he was fascinated by the approach of the Kenora CFS, since it claims to have a strong and complete defence to the action, based on the fact the alleged abuse occurred while Slota was under the care of a prior children’s aid society, now dissolved and unrelated to the current corporation.
“If the CFS is correct, should it not want to have the case resolved on its merits as quickly and cheaply as possible? Instead, it refuses to offer procedural or scheduling cooperation to get the matter heard and it actively thwarts efforts to do so,” Justice Myers wrote. “As but one example, instead of cooperating with new counsel on whose shoulders the burden of her ill partner’s cases has fallen, the CFS still points to a lack of medical evidence to prove the plaintiff’s lawyer’s illness despite her being off work for more than a year.”
“Defendants and plaintiffs alike are entitled to a fair process that is not delayed inappropriately. But they are not entitled to use old-school tactics to create or exacerbate procedural delay and undermine the fundamental goal of a fair resolution process,” he added.
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