Saskatchewan corruption (part 3)

The worst happens

The setting: a room in the Saskatoon King's Bench courthouse, November 2021.* What happens in court today is the most corrupt thing I have ever personally witnessed, and the beginning of the end of my legal career.

The case I am writing about here was a breach-of-contract case, so there is no restriction on publishing the names of the people involved. My client was Tena Peters, a 75-year-old widow from a small town north of Saskatoon, the province's largest city. The opposing party is a corporation, Waldheim Specialty Sand Products Ltd., run by a man named Murray Penz.

We are in a pre-trial conference, so the only people in attendance are Tena, myself, Murray, his lawyer (an older guy near retirement named Robert F. Thornton), and the pre-trial judge, Chief Justice, Martel D. Popescul. According to court rules, everything the parties do and say in the pre-trial is off the record, meaning that it cannot be used for any purpose later in the lawsuit, nor can anything the judge says be appealed to a higher court. And just like previous pre-trials (see my previous post, Saskatchewan corruption (part 1)), the judge is doing his best to make sure that the case settles here and now, and does not ever see a trial courtroom.

Some background.

The number of this court case: QB 1069 and QB 1179 of 2012, Judicial Centre of Saskatoon. These are the official numbers assigned to the case when it was first filed at court. The “2012” means what you think it means: the case was first filed in the year 2012, so at this point in the story we are nine years into the case. All the court documents still exist and you can look at the file anytime you wish, if you want to go to the Saskatoon courthouse in person and request it. The court does not have electronic filing or electronic record-keeping of documents, which would allow the documents to be looked up on the internet from anywhere. The Chief Justice's court is not technologically advanced enough to allow for electronic filing or record-keeping, although the higher court, the Saskatchewan Court of Appeal, has already been doing things electronically for several years. At the higher court, you can scan your documents and submit them through the court's website, and with the correct sign-in information go into the website and review any of the court documents anytime you like. But not in the Chief Justice's court; there, you can only see the paper file, or if you are not able to get to the courthouse in person, you can contact the court and ask them to fax or email you a copy of a specific document, for an administrative fee.

Even then, not everything about the case can be read. As I wrote earlier, anything that happens in a pre-trial is not recorded and is considered off-the-record, meaning that this account you are reading now is just about the only way you can learn what occurred at court that day.

The case has taken over nine years to get to this point. One of the original parties to the case, Tena's husband David Peters, has passed away since the case began. David died in 2020, leaving his widow Tena to finish dealing with the case. Another one of the original parties, Geransky Brothers Construction Ltd., which used to be a plaintiff along with Waldheim Specialty Sand Products, has dropped out of the case and is taking no part in this pre-trial.

The subject matter of the case is the gravel under David and Tena's farm. In Saskatchewan, gravel is valuable. Some lands have it, some do not. If your land has gravel under it, you can sell it to someone who will be happy to excavate it and carry it away for a good price. That is what David did years ago – he signed a long-term contract with Murray's company, Waldheim Specialty Sand Products, to allow the company access to his and Tena's land to dig up their gravel and take it away for a specified price per yard.

Not long after David signed the contract, he had a falling out with Murray and wanted to end their relationship, long before the contract term was up. David said that Murray's company was, basically, not working fairly, digging in places that he did not want the company to dig. The contract, which was simple and written without lawyers, but competently enough done, contained nothing about restricting where the company can dig. Murray's company, and its partner in the endeavor, Geransky Brothers Construction, sued David and Tena and obtained an interim injunction - basically an order granted at an earlier stage than trial - allowing them to keep excavating. The injunction prohibits David and Tena, or anyone on their behalf, from interfering with the gravel extractors' work.

The day in court that I am writing about is in November 2021 – so why has the matter taken nine years to get to this point? Many reasons, but it is not unusual in Saskatchewan for cases to be in the court for years and never get anywhere near a trial. The system is not set up to encourage getting cases to trial quickly.

An interesting point about this case is that the plaintiffs – Waldheim Specialty and Geransky Brothers – sued for something called ‘specific performance.’ This means, basically, that they are suing for David and Tena's gravel, that specific gravel, and they say that any other remedy would be inadequate; money is inadequate. They say that this gravel is unique, that it has special attributes, and cannot be easily replaced. They cannot just go down the road to another farm and find the same type and quality of gravel. Because this gravel is special, they are claiming the specific right to excavate it, rather than monetary damages, as their preferred remedy. They do not want payment for losing money due to breach of contract, they want, as their first choice, at least, an order allowing them to get that specific gravel.

If you were not suing for specific performance – just plain breach of contract - you might claim something like: 'I was promised this gravel at x money per yard, and I could have sold it for y money per yard. When the contract was breached, I lost my gravel supply and my business was temporarily interrupted. I lost profit that I should have got, so I am suing for that amount.' That would be one example of a standard breach-of-contract claim. But that is not the type of claim this is.

Specific performance claims are certainly not unheard of, but they are considered a bit of an exception, a special case. Usually, to succeed in a claim for specific performance, the claimant has to show that the object of the dispute special or extraordinary in some way. You probably cannot make a successful specific performance claim for, say, a Ford truck, at least not if there are a hundred other similar Ford trucks on the market in your locale at that time.

So back when the action was started, the companies claimed that this gravel was special, and they needed this particular gravel at Dave and Tena's farm and could accept no substitutes. At an early court application, Justice Grant Currie accepted this argument and gave them their injunction. He granted a court order that the companies could keep working and digging up the gravel on Dave and Tena's land.

There was never any real evidence that the gravel was exceptional in any way, other than a sworn statement from Murray Penz, the owner of Waldheim Specialty Sand Products, saying so. Justice Currie was persuaded by this, reasoning that Mr. Penz obviously knows a thing or two about the gravel business and if he said the gravel was somehow special, that ought to be good enough.

I got involved in the case after the injunction application, when Dave and Tena switched from their previous lawyer to me.

Dave got into trouble a little later for allegedly interfering with the gravel companies' work by parking his equipment in places that blocked the paths of their own equipment, having his horses get in the worker's way, having fence wire in places that were inconvenient for the workers, things of that nature. There was no doubt that Dave had a falling out with the gravel companies and wanted them off his and Tena's land, but he never did anything drastic like punching out the employees or gluing himself to the road to block them or anything like that. Nonetheless, for having his stuff, horses, and fences in inconvenient places, the companies successfully applied to have him and Tena held in civil contempt of court, ultimately leading to a monetary penalty of about $30,000. That was just sort of an interim skirmish; it did not decide the outcome of the matter, but was more like an important battle won by the gravel companies in the course of the larger war.

That is how the matter sat, for years. The companies dug away, and Dave and Tena seethed. They did not like how the companies were doing their work, but there was in fact a signed contract, plus a court order enforcing the contract until trial. They wanted out of the deal, but unless they won at trial, there was nothing they could do about it. They received periodic payments over the years for the gravel taken.

(It is also interesting to note that the payment arrangements were based on a healthy dose of what one might call the honor system. The companies gave Dave and Tena slips of paper showing how much gravel they hauled, and paid according to those, but there was no practical way – at least, not that I could see – to have any independent, third-party verification of the amounts actually taken. I am not in the gravel business, and I do not know how such verification could have been done, but nonetheless it is a noteworthy part of the story.)

Of course the matter never went to trial. There was a first pre-trial in 2018, presided over by Chief Justice Popescul. The parties' respective positions were clear: basically, Dave and Tena wanted the gravel companies off their land, while the companies wanted to continue working until the end of the contract, meaning the end of calendar year 2020. The Chief Justice gave the parties his usual opening speech, telling them words to the effect of: “I am the Chief Justice. I settle all my pre-trials and I am going to settle yours,” and leaving no doubt that, if he had anything to say about it, the matter was never going to see the inside of a trial courtroom.

After several hours in the pre-trial room, Dave and Tena capitulated and signed a deal essentially saying that the companies could keep working on the land for the full term of the contract, through the calendar year 2020. There were some finer details in the deal about how and when the periodic payments would be made, and which areas would be excavated, but the basic deal was that work would go o.

Toward the end of that first pre-trial, Dave muttered over and over again that Murray would not pay as agreed. He did not trust that Waldheim Specialty would hold up its end of the deal. The Chief Justice pointed out that Murray's company, and Geransky Brothers, had been making the periodic payments according to the contract. Dave was still very suspicious. To allay his and Tena's fears, Justice Popescul told them that if they did not get paid, they should bring the matter back to court, to the attention of him personally, and he would make them pay.

Dave passed away in 2019. Tena, now widowed, stayed on the land. As agreed at the first pre-trial, the companies kept excavating and hauling gravel, and things proceeded more or less as expected. But in 2020, I received some letters from Mr. Thornton, the companies' lawyer, complaining that his clients' work was again being interfered with, and demanding that the interference stop. No specifics, just vague allegations of interference. They were just letters, nothing else; the companies did not make another contempt of court application, which they certainly could have done. After all, they had already applied for a contempt order years ago, and were successful. But in 2020 there were just the letters.

At some point, Geransky Brothers stopped having anything to do with the case, leaving only Waldheim Specialty as a party. Then came the end of 2020: the contract was up and Waldheim Specialty's employees and equipment left Tena's land, as agreed. But the company did not make the final payment. It was exactly as Dave had warned.

Waldheim Specialty admitted that it had been working away for all of 2020, digging and carrying away gravel, and admitted that it owed Tena a final payment. However, it said that because of this as-yet unspecified, unknown interference – the same interference vaguely mentioned in those letters from 2020 from their lawyer – they did not have to pay what they owed. Instead, the claimed set-off, which is a legal term that basically means, “Yes, I admit I owe you some money, but you owe me money too, so I demand that my debt to you should be offset by your debt to me.”

Tena did not know how much she was owed for her final payment, because of course the only one with that information was Waldheim Specialty, which never disclosed it. Tena guessed that it was at least $250,000. Waldheim Specialty claimed that its own losses were about $1.8 million, saying that was what it lost due to the interference. Waldheim said that it needed a “trial of an issue” - meaning, essentially, that the parties would have to go through all the steps of general procedure litigation including document disclosure and sharing, examinations for discovery, the whole nine yards, before they would pay Tena a cent of what she was owed.

This was strange to me, to say the least. Waldheim's case had always been based on the specific performance argument - that this gravel was unique, and if it could not get at that specific gravel it would suffer irreparable harm. A specific performance claim, if you recall, depends on the idea that monetary damages are inadequate to compensate the claimant. But now, after the contract term was up and Waldheim's workers were off the land, suddenly that was all forgotten and now monetary damages were apparently appropriate.

Also, I wondered why Waldheim had done nothing to stop this alleged interference when it was supposedly going on in 2020. They had previously successfully applied for a contempt order years ago, and could have applied again. An application of that nature can be done on about two weeks' notice, meaning that if Waldheim was suffering hundreds of thousands of dollars in losses because some of the gravel was somehow off-limits to its workers, it could have applied to court on a pretty short timeline to rectify the situation. The first time they were allegedly interfered with they not only got an order holding the landowners in civil contempt, but ultimately received money damages of about $30,000 for their trouble. If they had applied to court in a timely fashion in 2020, when they say they were obstructed, they could have had the gravel itself – that supposedly unique, super-valuable, irreplaceable gravel. Instead, they sat tight, did nothing (other than having their lawyer write letters), and only claimed monetary damages the next year.

What is more, it seemed strange that Waldheim would apparently ignore the old adage that possession is nine-tenths of the law. This is usually a good rule to follow. It means something like a bird in the hand is worth two in the bush. If you can possess something now rather than fight for it later, you are almost always going to choose possessing it now. You would expect that if Waldheim really was obstructed from getting at gravel, and was losing $1.8 million as a result, it would want to have that gravel now rather than fight about the damages later. Having a thing now is certain; fighting about the right to a monetary payment in place of that thing later on is inherently uncertain, not to mention really costly.

In short, the whole thing seemed crazy. Nothing about Waldheim's behaviour made sense to me. They took a certain quantity of gravel during the last part of the contract period; that was clear. They did not pay for it; that much was also clear. They claimed they did not have to pay, though, because they should have been able to take more gravel than they actually did, and this cost them a lot of money in lost profits. But why did they want to make the claim for these lost profits take as long as possible? Why would a company deliberately choose a years-long, expensive and time-consuming court battle about lost profits instead of just using the tools it clearly had available at the time to make sure it did not lose those profits in the first place?

Waldheim applied in chambers for a trial of an issue on whether or not they were owed damages, and I counter-applied to have their application thrown out. Justice Colin Clackson essentially chose a middle course, saying that Waldheim would get its trial of an issue, but would have to do it by way of summary judgment -a legal term meaning that the issue is resolved in court, but by way of an alternate procedure, with much or all of the evidence written down in sworn statements rather than having the parties testify on the witness stand. Justice Clackson did not specify any timelines for when the matter would be adjudicated; he simply ordered that when it went ahead, it would do so by summary judgment, and left the rest to the parties.

But this left Tena in a difficult position, because it put the ball in Waldheim Specialty's court as far as moving the matter forward. When there is a summary judgment application, usually the party making it has to file their sworn statements in support well in advance, then the opposing party files their own sworn statements, if any. The parties usually file other things, such as legal briefs. There might be some preliminary wrangling about information sharing and/or document disclosure. But none of this happened here. Waldheim did not file anything, and did not seem eager about proceeding to the summary judgment application. And why would it be interested, after all? It had the gravel it had taken in 2020 and had the freedom to use it or sell it as it pleased, possession being nine-tenths of the law and all.

Then Waldheim announced it needed more information before its claim could be adjudicated. It needed to know exactly how much gravel was left on Tena's land in order to know how much it had supposedly lost in profits. Never mind that Waldheim had been on the land for years, excavating away; now it said that it did not know exactly how much gravel remained. It said that it needed back on the land to dig further test holes, presumably in the parts of the land that had not yet been dug up.

Tena remembered the Chief Justice's promise to her and Dave during the first pre-trial, when he told them that if they did not get paid, just bring it back to him personally and he would make them pay. So I wrote to him, asking him to assume management of the case. He wrote back that he did not remember making that promise, but since Tena said so, he would honor it and would grant a continuation of the pre-trial. This meant the parties (minus Dave, who had died, and Geransky Brothers, which no longer had anything to do with the case), would sit down with him again in a pre-trial room, discuss it, and attempt to work it out.

This pre-trial continuation was scheduled for November 2021. Just beforehand, Waldheim's lawyer filed a sworn statement from Mr. Penz giving some particulars of the alleged interference. He said that Tena's son Phil had told Waldheim's people that they could not access a certain area or areas, and mentioned that there was some fence wire obstructing part of it. Of course, he did not explain why, even if that happened, Waldheim let it stop their work. They had a contract and a court order, and could easily have enforced them at the time. They had never let their work be obstructed or interfered with before; it was inexplicable that they would have sat back in 2020 and done nothing.

I suspected and argued that Waldheim's claim was part of a strategy to avoid paying for the gravel it took during the final stretch of the contract term. Any litigation lawyer, and indeed, anyone who knows about negotiation, knows that it helps to play offence as well as defence. If you are facing a claim for a debt, you are on defence. That means the possible outcomes of the claim are: (1) pay nothing, (2) pay the full debt claimed, or (3) pay something in the middle. But if you have a counterclaim, then the game theory is different. If there are two claims, one by each side, then your possible outcomes are (1) get paid, (2) pay your adversary, or (3) something in the middle. Even an absurd, made-up counterclaim is potentially strategically useful. The range of outcomes is potentially better that way.

Now, not every litigant makes a counterclaim, despite this logic. This is because making a claim against someone is risky if you cannot back it up; or at least, it would be risky in a world where trials exist. If you will have to substantiate your counterclaim in a court of law, there is a strong incentive against making up a claim purely for strategic purposes, for many reasons: It costs money to have your lawyer draft the claim, but also there is the danger that it will be exposed at trial as bogus, which will make the trial judge look unfavorably on you for having wasted the court's time and making the opposite party defend themselves against something frivolous. It can also damage your credibility in the context of your defence against the other party's claim, as the trial judge may well think that you are less worthy of belief based on the fact that you made up allegations against the other side for no good reason. These are all reasons why it can be perilous to fabricate claims; but all these reasons depend upon the possibility of trial. As I have said, though, in Chief Justice Popescul's court, trial is never presented as a realistic possibility. Even if the case makes it, after several years, to the penultimate step of litigation – pre-trial – if he is the pre-trial judge, he is there to tell you that every pre-trial should and will result in a settlement. So the incentives not to fabricate claims do not apply in that environment.

At the pre-trial continuation were the Chief Justice, myself, Tena, Phil, Murray (for Waldheim) and Mr. Thornton. It started with a short discussion of the issues with everyone in the room, following which the judge asked to caucus with each side, meaning that Tena, Phil and myself would be in one room, Murray and his lawyer in another, and he would speak separately with each side.

First, he spoke with the other side. Then, speaking separately to us, he told Tena and Phil that, because their claim was estimated at about $250,000 and Waldheim's claim at $1.8 million, Tena would have to pay Waldheim something if she wanted to settle the matter that day! I objected to this, saying that the claims were not of equal merit. Tena's claim was rock-solid, because no one was denying that Waldheim had taken her gravel, but Waldheim's claim was built on nothing. I pointed out that if Tena or Phil had prevented Waldheim from working at any time, they could have taken action at the time. Justice Popescul replied that he did not want to discuss the merits of the case.

Tena said that she would not agree to pay Waldheim anything. Justice Popescul said then that there was no point in continuing, and we would enter the management portion of the pre-trial; meaning negotiation was supposedly over. We would move on to doing some paperwork to help prepare the case for the next step, presumably the summary judgment application that Justice Clackson had ordered months before. This would have been strange if he had actually meant it, because it would signify that he was giving up on settlement so early. The pre-trial had barely started. But he did not actually mean it; it was meant to give Tena the initial impression that she had only two options: pay Waldheim or face further litigation. He meant to start her off by eliminating the idea that Waldheim would be paying her anything whatsoever.

I could see that calling an end to negotiations was just for show. When the settlement portion of a pre-trial ends and management begins, caucusing ends and the parties get together in the same room. The judge's plan was for us to get back together and for Mr. Thornton to give some signal that maybe there was another way to settle the matter; not with Tena paying anything, but perhaps something else.

So the parties got back together and the opposing lawyer indicated that, lo and behold, settlement might be possible without any payment by Tena. There might be a possibility of a compromise.

Then I spoke really bluntly to the opposing lawyer, telling him exactly what I thought of his client's case. I said that it was the flimsiest, most insubstantial case I had ever seen, among other things. I was angry, because I thought my client was getting scammed here.

The judge was not obviously not counting on me saying anything like that; it was not in his script, so to speak. He said, “Well, now, I thought there was no possibility of settlement, but maybe I was wrong,” but I remember how odd his voice sounded, as though he was surprised and unsure. Of course, he had a desired outcome in mind, and was trying to steer Tena toward it. When I exploded and verbally trashed the other party's case, it was not part of the plan, and was not helpful. But he was planning on saying the line regarding settlement maybe being possible after all, and he went ahead with it.

In any case, negotiations were back on. We started caucusing again. Now the judge told us that Waldheim was willing to write off its entire claim, the whole $1.8 million, if Tena would drop her entire claim as well. The other would settle for a “wash”, meaning that neither side would pay anything to the other. Both sides would pay their own legal costs, and it would be over.

It had taken us almost a year after the contract ran out to get to this point. Despite what happened in the first pre-trial years before - when Dave had warned that Waldheim would not pay the judge said that the matter need only be brought back to him and he would take care of it - he was now telling Tena she had to walk away with nothing as her final gravel payment. It was going exactly as Dave had predicted, and the judge was trying to make sure it would settle on that basis. He told Tena there was no other option but to drop her claim and accept nothing.

Tena was 75 years old at the time. She said that she needed the money from the gravel contract, was counting on it. She deserved it.

Dave had always handled most of the talking during litigation when he was around, but now she was mostly on her own. Her son Phil was in the room, but he was there purely for moral support. Still, Tena did not give up. There was something sad but very noble about the way she refused to accept that she had done anything wrong, refused to agree that it was right that she should give up. I recall her appealing to her Christian faith for support, and saying that she was on the side of truth. Of course, the judge had said that he did not want to discuss the merits of the case, which means that from his perspective, truth was irrelevant. And yet he was steadfast in telling Tena that a wash was her only choice.

Tena and I were not giving up yet. I told the Chief Justice I would like him to present a counter-offer to the other side: Waldheim would pay Tena $150,000, drop the bogus counter-claim, and end the lawsuit completely. He refused point-blank. He said he had told Waldheim that he would “push for a wash” and he was committed to that. This was really surprising, even in the circumstances of a crazy pre-trial like this one. I had seen pre-trial judges try to steer settlement in one direction or another on plenty of occasions, seen them express doubt about the viability of offers, express serious doubts that there was any point in continuing negotiations. But I do not ever recall seeing a judge flat-out refuse to take an offer to the other side. Never before or since. Chief Justice Popescul was very, very committed to settling the matter as a wash, with Tena walking away with nothing.

I said then I would take the offer myself to Waldheim and their lawyer, who were in another room just down the hall. He would not allow me to do that. He said if I was going to make the offer, it would have to be in a room with everyone together, as he put it, “So we can all watch what you do.” As though there was something untrustworthy about me and I needed to be kept under supervision. He cautioned me to be careful how I spoke when I presented the offer.

Then we were all together again. The judge announced that I had a counter-offer to present. First, I said to Mr. Thornton that it was strange how his client's $1.8 million claim had just vanished into thin air, almost as if there was no basis to it at all. Mr. Thornton asked me to state the counter-offer. I asked him to tell me how much of Tena's gravel his client had taken, so she could know how much she was giving up. He said he did not have that information. Murray said he did have it, but could or would not disclose it. They wanted to hear the counter-offer, so I said it: $150,000 to Tena, parties to bear their own costs, litigation over.

The judge asked me to clarify, saying, “What is your offer? $150,000.” By this time, everyone's tempers were flaring. I responded, “Of course.” The judge bristled at that and told me not to say ‘Of course.’ He said, “You were blathering on so much I couldn’t make sense of what you were saying.” When I objected to him using the word 'blathering', he answered, “I used that word deliberately, and with intent.”

He had no problem with insulting me in front of my client; it was only going to get worse before the day was done.

After hearing my offer, the judge had Tena, Phil and me leave the room while Waldheim and their lawyer talked separately with him. When he called us back in the room, Murray and his lawyer left, and the judge presented Tena with what he called a “line in the sand, final offer”: she would receive a payment of ten thousand dollars only ($10,000), plus Waldheim would waive any claim to court costs resulting from the earlier chambers application before Justice Clackson (which would have been minor in any case, no more than $3000).

You will note that when Tena had an offer to make, he refused to have anything to do with presenting it; he made me do it. But when Waldheim had an offer, he presented it himself. And he did not present it to me as Tena's lawyer; he spoke to her directly.

The judge told Tena that if she did not accept this offer, it would have to go to further litigation, and he cautioned her that the outcome could well be a lot worse than the offer on the table. He said that looking at the information before him, as he put it, “I can't tell who's right.” He said she might lose the case and have to pay a huge sum to Waldheim.

He then really started denigrating me to Tena. He told her that I had been “less than successful” in my conduct of the case to this point. He asked if I had told her everything that had happened at the chambers application, insinuating that I was hiding information from her.

The judge then said to her, “I want to apologize for your lawyer's behaviour today,” calling it, in his words, the “most disruptive, disrespectful display” he had ever seen at a pre-trial. By then I knew that I had put myself in the Chief Justice's bad books, probably forever, and I was not happy about it. It did not bode well for my future legal career, to put it mildly. I said, “Well, it wouldn't be the first time I've dug myself a hole.” Popescul responded, “I’m not worried about you digging a hole for yourself, I'm worried about you digging a hole for your client.”

So now the judge had told Tena – either expressly or by implication - that her lawyer, her advocate, was working against her. He meant her to understand that I was hurting her own interests. I thought that none of what he was saying had any relation to reality; it was part of a strategy to make her feel as though she was on her own, no one was looking out for her, and in fact her own lawyer was digging a hole for her.

But still, Tena would not give in. Not yet.

Popescul called Murray and his lawyer back into the room. Tena told them she was rejecting the counter-offer. Murray's lawyer then spoke directly to Tena, threatening her that if she did not accept, then Waldheim would dig the test holes on her land to see how much gravel was left, further disfiguring her beloved farm. He did not present this as a possibility but as a foregone conclusion. He said that it was, as he put it forcefully “going to happen!” (His client had, in fact, not even applied for an order allowing it to access her land again, let alone to dig it up further.) Popescul looked on silently, saying nothing.

This was more than Tena could bear, and her resolve finally gave out. “I guess we’ll have to give in,” she said.

Murray's lawyer turned to me triumphantly, saying “Did you hear that?”

What was Tena going to do, I thought, try her luck in court after what had happened that day? After the judge had told her that her lawyer had put on the worst display he had ever seen? That I was digging a hole for her?

Normally when a party is represented by a lawyer in a legal dispute, settlement offers are put to the lawyer, not the party directly. The lawyer and the litigant talk it over, and the lawyer responds. But that is not what happened here. The pre-trial judge and spoke directly to Tena until she finally crumbled.

The judge never gave Tena an opportunity to think it over. Right away, he asked Mr. Thornton to write up a settlement agreement for us all to sign.

I responded that there was no way my client was going to sign anything that day, because she had been deprived of the effective assistance of her lawyer. The way I saw it, if the judge was going to insult me and terrify her to get at this supposed resolution, I was not going to let her put her name to that agreement, not in those circumstances; she was going to have an opportunity to think. I said that Tena had not been treated at all fairly.

“It felt like we were alone,” Tena said, there at the table with everyone.

But the Chief Justice endorsed the file as settled anyway. He wrote on file: “After discussion the parties have arrived at a resolution.” This was very, very unusual. I have never seen a pre-trial judge endorse a file as settled unless there was a signed settlement agreement right then and there. I doubt any lawyer has. Popescul arranged for us all to have a conference call the following week if there were any issues.

I decided a few days later to make a complaint about the Chief Justice to the Canadian Judicial Council. It was a really perilous step because if I was in his bad books before, this would only make things far worse . I had never made a complaint against a judge before. But there was nothing else to be done, I thought. There is no appeal to a higher court from anything that happens in a pre-trial conference, because by design a pre-trial is off-the-record and without prejudice. The only other step I could have taken would be to report the judge to the police, and even if that idea had occurred to me at the time (it did not), no one would seriously expect the police to do anything in the circumstances. So I made the complaint in writing, asking that he be suspended pending an investigation, and invited the Council to speak to Tena and Phil. (The Judicial Council did nothing but brush off the complaint.)

We had the follow-up conference call on December 3, 2021, a few days after I made the complaint. The judge and Mr. Thornton knew about the complaint because I had copied them both on it by email.

Popescul began the call by telling us all that that he was recording it. This was extremely unusual because pre-trials are never recorded. I figured that he was obviously concerned about protecting himself in relation to any complaint investigation, and against any future complaints, but also I think he wanted to get all of us on the record agreeing to his version of events. I thought he was probably concerned about the fact that he had endorsed the file as settled when the matter was not yet officially over, there being nothing in writing.

My client was not on the telephone call. I did not have Tena join, but I told the judge that I could link her up if he wished. Once I knew the call was being recorded, I had no reason to fear that she would be subjected to threats or intimidation again. The judge said not to worry, he would not require that she be on the phone. I thought that he really just wanted to get me and the other lawyer to agree, on tape, that the case had been resolved.

On the call, he said that it was his understanding that all issues had been settled, everyone understood the terms of the deal, and the parties had only adjourned the pre-trial conference for the purpose of drafting the written agreement and having it signed. He asked Mr. Thornton to confirm that this was his understanding as well, and that of his client. Mr. Thornton duly did so. Then he asked me for the same confirmation, which I would not give.

I said that my client had agreed to give in, but only after she had been deprived of any effective assistance of her lawyer, bullied, intimidated and threatened until she could not see any other option. I told Popescul he could call that a settlement if he wanted to, but I would not agree.

“I think it stinks to high heaven,” I said.

The case was at an impasse. It was a situation I had never seen before: there had been a pre-trial, the judge had marked the case down as settled, but there was no settlement agreement. The terms of the settlement, although they had been spoken aloud in the pre-trial room, had never been put in writing or signed. The judge clearly should not have endorsed the file as resolved, but it was too late to do anything about that.

I suppose Tena could, theoretically, have made some type of court application to continue the lawsuit, but the case was now in a hopeless mess, and a fair resolution was farther away than ever. What was she going to do, apply to the same court for a trial – or a summary judgment hearing – in the face of Popescul's note on the file that it had been resolved? She would have had to make an interim application in chambers, and it would undoubtedly have been heard by a judge other than Popescul, but doing so would require her to argue that Popescul was either lying or mistaken when he wrote that it was resolved. The other party and their lawyer would be arguing strenuously that Tena was the one who was trying to deceive the court. They would be saying that of course the Chief Justice was correct, the matter was settled, that Tena was just trying to renege on a deal that she had clearly made in the Chief Justice's presence. Talk about swimming upstream. I doubt she would have stood a chance. Of course she eventually signed the deal. She had no other choice.

I think what happened was a crime.

*The court was called Queen’s Bench back then because Elizabeth II was still alive, but everyone calls it by its new name now, and it is easier to go with that for this story. Same institution.