Changing Lawyers

September 14th, 2020

As we wait for Tabib and her civil service coworkers at the Canadian Standards Association (CSA) to get ‘round to announcing their arrangements, such as we’ve covered here and here, it may amuse you to read of some of our legal wrangling behind the scenes.  A lot of this was unreportable until recently, mostly for reasons of legal process.  Now we’re freer, and getting more so.  So here we go.

Waaay back in 2015, we changed legal counsel.  There were good reasons for this. 

When the Canadian Standards Association (CSA) first started threatening us in the fall of 2011, I contacted the only legal contact I knew; a senior partner at the law firm of McCarthy Tetrault.  Years earlier, I’d processed this lawyer’s invoices while working at TransCanada Corp.  They’d hired him, they were pleased with him, he was capable, competent and intellectually brilliant and, based on his picture on the McCarthy’s website, he looked a freak show.  Anyway…

I recall sitting in a breakout room at McCarthy’s offices in my first face-to-face with our newly signed legal counsel.  He warned me that defending against CSA could cost as much as $80k.  I mean, that’s hilarious now.  We burned through $80k in a few weeks, and it’s been nine years already.  Anyway, I swallowed hard, knowing that $80k would be tough to find but I didn’t really have much choice on spending it; I was being sued, not the other way around.  One must defend or one’s ruined.  So, a bit deflated, I resigned to spending all that I’d been saving, just to retain the right to continue my business.

In the first few months all was well.  The case was progressing, sort-of.  It was mighty slow, but I was advised that this was normal.  We had our first mediation in the fall of 2012 and it was hopelessly unproductive and hugely frustrating, and we went overtime that day, the fatigue of it exacerbating the resentments inside CSA’s breakout room at the lawfirm.  Toward the end, the mediator noted that “there’s not a lot of good will coming from that room right now.”  Indeed, the CSA team was ticked.  Apparently, I wasn’t being a good sport and capitulating as they’d expected.

In the weeks that followed, CSA made it clear that they had no intention of honouring Queen’s Printer law, and every intention of trying to bankrupt PS Knight out of existence.  I decided to start a small blog project to chronologize the coming fight.  That’s this website, folks.

My lawyers were dead against this website idea.  They wanted to keep the conflict within the conventional parameters of litigation.  But CSA was using the treasury to finance their case, to beat me down, and I needed a way to even the odds.  So I did it anyway, and my lawyers endured their annoyance.

But there seemed more to their annoyance than the lawyers were letting on.  Couldn’t quite sort it out.

As readers well know, the RestoreCSA site received some early media attention and what followed was a wealth of whistleblower information and, as you also know, we published extensively on it.  Again, on these developments my legal team was understanding and sympathetic but, uh… not especially supportive.  I chalked up their annoyance to wanting to control the entirety of the legal process.  I was wrong, but that’s what I thought at the time.

With all this intel on what CSA was up to, and a lot of it criminal in nature, and with all the evidence in our possession, by 2014 we had a universe of legal ammunition to use against CSA.  Oddly however, my legal team was all tepid about the wealth of opportunity.  They had no practical interest in anything outside the immediate path of litigation.  I mean, they were amused by the unearthed intel, that’s true, and they were impressed of the scale of corruption at CSA, but it was almost as if all the weapons suddenly in our possession, exactly what we needed to crush our opponent, were actually unwelcome.  They’d almost prefer not to know about the opportunities.

As my legal team wasn’t being proactive on the matters then before us, I started my own legal research.  I found that we had loads of tactical options against CSA.  I pitched these, one after the other, to my lawyers.  They had no interest.  They never explained why they had no interest, and not for lack of my asking, only that these options were outside of what they considered acceptable in the circumstances of the case. 

This went on for some time, many months in fact.  And it culminated in the summer of 2015.

The Court was by then upset that the CSA conflict hadn’t been resolved in favour of CSA yet.  They were struggling to understand why, after giving me so many chances to apologise for defending myself and start paying CSA the protection money, that I’d thus far, and in their view inexplicably, declined to do so.  So, in legal frustration, the Court ordered what’s called a Judicial Dispute Resolution, or “JDR”.  A JDR is just a mediation, but with a Prothonotary of the Court presiding in the role of mediator.  And the Court Ruled that the JDR would be held in Toronto, naturally.

Ponder spending $600 / hr to have a lawyer sit in an airplane for four hours.  Then pay the lawyer’s airfare.  Then the hotel rooms overnight in Toronto, at Toronto rates.  Then pay that hourly rate for the eight hours of JDR.  Then pay airfare to return the lawyer to Calgary.  Then 50% of the JDR expense.  Then my own expense.  See?  Defending one’s self is ruinously expensive.  That’s why using litigation as a weapon works for the scumbucket class of civil servants; they almost always win the shakedown.  I digress.

So, the JDR commences.  Prothonotary Roger Lafrenier presides.  He’s amiable, a capable functionary.  He spends most of his time in CSA’s room.  Why?  Because the civil service is behaving poorly.

The CSA delegation, you see, arrived at the JDR with no authorization from CSA leadership to make any concessions at all.  None.  They showed up to accept my surrender.  And here’s the thing folks, they expected my surrender. Somehow, CSA got in in their heads that I was going to capitulate to their core demands and all they had to do was show up to receive this from me.  The JDR was their granting me an audience for this purpose.

Well, Lafrenier spent a lot of time in CSA’s room, explaining that no matter how much he felt solidarity with his fellow civil servants, showing up with the air of princes to concede absolutely nothing isn’t a good look.  The civil service may expect to take whatever they want, but they mustn’t look like that’s what they’re doing.  Moreover, by then I’d demonstrated a noteworthy lack of interest in knuckling under.  He tried to talk some sense into nonsensical people.

Through all the hours of wrangling, of torturous back and forth, my lawyer was consistently arguing against my position, actually in favour of my opponent on each point, and he did so in front of the Prothonotary.  This is really bad form, by the way.  It was as though none of the incredible revelations of CSA conduct over the previous year had any relevance to my own legal team.  At one point, in exasperation, I reminded my lawyer of some of what we had on CSA, of the legal filing options to exploit it, that we “have them over a barrel” in a big way.  I confronted him; “How’s this even possible, to be completely compliant with the law and yet be in a weak position, when CSA is in massive breach of law yet somehow they’re more legally secure?”  But no, nothing moved my legal counsel.

Likewise, the Prothonotary had no interest in facts I assumed would be central to his interest.  The law, for instance, or the cause of justice.  I marvelled that a Prothonotary of the Federal Court could be so aware of criminal conduct of one party before him, yet so uninterested in it.  Indeed, Lafrenier treated CSA’s criminal activities as a distraction, as though discussion of these interrupted something more important.

Late in the day, Lafrenier advised that CSA’s final offer would shortly arrive.  My lawyer asked me what I thought the offer would be.  I replied; “sub two-hundred.”  That is, CSA would offer to stop attacking me, my father, and my company if I paid them a royalty for the right to access public law (this was before Manson’s Law), the CSA would likely want all this on a fixed term, enabling them to unilaterally change the deal at some later date, and they would pay damages to me of less than $200k -that’s the “sub two-hundred.”  And that’s exactly what they offered.  And that was a problem.  Yes, the royalty was ridiculous, and the fixed term a non-starter, but the sub two-hundred thing was actually offensive.  Accepting that figure would mean bankruptcy for my company.  Our legal fees by that point were well over double that amount and CSA had been constricting our revenues, deliberately harming PS Knight’s reputation in the market.  We were marred by them and hurting financially.  And CSA knew it.  So their best offer was engineered to ensure that PS Knight was destroyed. 

That said, my lawyer was arguing that I should accept CSA’s offer, pay my lawyer’s legal billings, then bankrupt my own business and try doing something else in life.  Apparently, this is the normal outcome of such things. 

The Prothonotary arrived in our little room to receive our response to the CSA final offer.  Lafrenier sat to my right, my lawyer across a table to my left.  Lafrenier was sitting at the edge of his seat, clearly hoping to close this deal.  So I turned to him and spoke slowly, deliberately, outlining my position.  I said that I had to accept some realities, however uncomfortable they may be.  Lafrenier furrowed his brow, affecting sympathy.  I said I was a very small company, with very limited resources.  Lafrenier nodded understandingly -Ooooo, I was going to cave!  How exciting for him!  Then, for these reasons, I said, I just didn’t have capacity to absorb losses such as required by CSA’s offer.  Lafrenier lost his furrowed brow, he was taken aback with this.  My bottom line, I said, is that CSA had chosen to cause a lot of damage, and all of it needlessly, and all of it extortionately.  I could not sign anything that leaves me even more vulnerable to their vindictive and lawless tendencies going forward.  Unless there was prospect for a deal such as I outlined at the start of that day, one acknowledging and complying with Queen’s Printer laws and paying in full the damage CSA caused, then we’d likely have no resolution that day.

And we had none.

In the days that followed, my lawyer made quite clear that he was displeased with my chosen direction in the case, specifically as it wasn’t the direction he was keen on taking my case.  He wanted to part ways.

I was ok with this.  For months by that point, I’d come to dread emails or, worse, phonecalls from my McCarthy’s counsel.  Lawyers are very good at making right look like wrong, up look like down, and making anyone who speaks plainly look like the lunatic.  I had been fighting on two fronts; one against the civil service, and one against my legal team, whose efforts had been increasingly counter to my instruction and my interest, and consistently aligned with the interests of my opponent.

Well, I found another lawyer and, in 2015, we had a clean slate legal team.  There was much rejoicing.  But there were also some landmines, we started finding them all over the place.

We found that my McCarthy’s counsel had made a series of secret deals with CSA’s counsel, Kevin Sartorio.  I had known nothing of any of these, they were made without my consent, against my will, and behind my back.  I found that my previous counsel had locked me into certain obligations that I was dead against, but was now stuck with.  And this wasn’t supposition, in some instances when my new lawyer expressed disbelief, Sartorio sent emails showing commitment on my behalf by my previous lawyer.  See what’s happening?

Look folks, lawyers talk to each other.  They’re colleagues before they’re adversaries on any case, and they know they’ll be colleagues in future, long after the current case is sorted.  They’re the experts, guiding their plebian clients through processes.  Lawyers know best. 

At some point, in the spirit of this legal comradeship, my first lawyer and CSA’s lawyer, Kevin Sartorio, had an off-the-record call together.  They talked as colleagues, not adversaries, casually discussing where this case should land.  I mean, they both wanted to get their billings alright, and both clients would be expected to cough up quite a bit, but once both lawyers had extracted what they thought they deserved, then they’d need to land the case.  So, where should it land?  And that is what they decided.  Each lawyer would then play out the process, fatiguing their clients, softening them to finally accept the landing / resolution both lawyers had more or less agreed on.  Each lawyer would lobby their client throughout the process, to line them up for the pre-agreed landing spot.

What neither my lawyer nor Sartorio foresaw was the start of this website, the number of whistleblowers coming forward, or the scale of exposed CSA corruption.  All of this was contrary to their purposes, as all of it pushed one party or the other off the path to the pre-agreed landing spot.  See why all the intel on CSA’s criminality was unwelcome?  It’s also why all of the tactical options resulting from that intel were unpursued.  It’s why my lawyer could not “in good conscience” push for anything other than what CSA was demanding.  And it’s why CSA came to the JDR, and so many other negotiations, honestly expecting that I’d just give them what they wanted.  Sartorio had told them that’s what I was going to do, because that’s the understanding Sartorio had reached with my legal counsel.  Hence all my lawyer’s lobbying of me to accept CSA’s position. 

Think this is unusual?  Think again.

Within a few months of my signing a replacement lawyer, Kevin Sartorio tried the same trick with the new guy.  He called my new lawyer, off the record, and suggested that they meet for coffee, you know, to talk about the case.  What about the case?  Well, Kevin said he had a few ideas on how to land this one and wanted to bounce them off my new lawyer.  What would Gordon do if we did thus and so?  See that?  Not what if he -Kevin- did something, but what if we, the two lawyers together, did something.  And he made it plain that the civil service was a big deal and should not be expected to lose, and both sides should use this reality as a baseline.

“Oh,” said Kevin, “one more thing.  We need to keep this quiet, right?  Whatever you do, don’t tell your client.”  Why?  “Gord is a problem, he shouldn’t know about this meeting.”

Thankfully my new lawyer was more ethical than my previous lawyer.  Yes, the new guy’s still a lawyer, but all is relative.  My new counsel called me immediately, gave me the dirty detail, and advised that he’d agreed to coffee with Kevin and would relay anything and everything to me on the sly. 

The coffeeing went ahead, curiously the pitch was made by James Green (Uriah Heep), and it was exactly, I mean, photocopyingly the same as was done with my previous lawyer.  Kevin wanted my new lawyer to reach an “understanding” of what was needed to get Gordon to be more reasonable in his expectations of continuing to exist.  If PS Knight were folded, or if its revenues were transferred to CSA, say, or some other and similar absurdities were taken seriously by this problematic Gordon guy, then surely CSA would relent.

As you can see, my second lawyer took the meeting as a tactical play, letting Kevin expose his hand, and nothing further came of it.

This, my friends, is how the law works these days.  Prothonotaries with no interest in the rule of law or the cause of justice, lawyers with interest only in extracting money from victims of the process, and a civil service so embroiled in unethical and illegal conduct that they’re inured to it and oblivious to the odious nature of their conduct. 

And if you’d like one last piece of evidence on the sickness of our system, as the icing on the cake, you may care to note that Prothonotary Lafrenier’s lack of interest in the law and his advocacy for the criminal against the victim has been rewarded.  In 2017, about two years after the JDR, Roger Lafrenier was promoted in Paul “Kangaroo” Crampton’s Court to the position of Judge on the Federal Bench.  According to the Court, Lafrenier was promoted because he demonstrates “the highest standards of excellence and integrity.”