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ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: LAURIE MASSICOTTE, SHAUNA FRASER, JENNA FRASER and RACHELLE FRASER Plaintiffs and MARY ELIZABETH HARRIMAN, DAVID RUSSELL WILLIAMS and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendants
I, Michael D. Heikkinen, of the City of Ottawa, in the Province of Ontario, MAKE OATH AND SAY: I am an associate with the law firm of AUGUSTINE’ BATER’ BINKS
lawyers for the Defendant, Mary Elizabeth Harriman, and, as such, have knowledge of the matters contained in this affidavit. 2. Augustine Bater Binks LLP has represented Mary Elizabeth Harriman in this and other matters since May, 2010.
It is my understanding that in September of 2009, the plaintiff, Laurie Massicotte (“Ms. Massicotte”), was the victim of an attack by the defendant, David Russell Williams (“Russell Williams”).
Russell Williams was arrested and charged with the attack on Ms. Masicotte, among other crimes, on February
Russell Williams pled guilty to the attack on Ms. Massicotte, among other crimes, on October 18, 2010.
Civil Action by Ms. Massicotte
Representation by Counsel
I am informed by Mary Jane Binks, Q.C., and I verily believe to be true that as early as June, 2010, Ms. Binks was contacted by lawyers representing Ms. Massicotte in relation to a potential civil action Ms. Massicotte would be bringing against Russell Williams and my client.
I am informed by Mary Jane Binks, Q.C., and I verily believe to be true that Ms. Binks was made aware in May of 2010 that Michael Pretsell, of the firm Pretsell Cavanagh (as it was then known) was representing a victim of Russell Williams and was issuing a civil action against Russell Williams and Ms. Harriman.
I believe that Ms. Massicotte’s first lawyer was Heidi Louise Bergeron, who is a lawyer in the Kingston area. Attached as Exhibit “A” to this my affidavit is a true copy of correspondence from Mr. Pretsell indicating that Ms. Bergeron was representing Ms. Massicotte. I note the date of this correspondence is the summer of 2010.
The next lawyer I understood to be representing Ms. Massicotte was Kristian Bonn, of the Bonn law office in Trenton, Ontario. Attached at Exhibit “B” to this my affidavit is a true copy of correspondence from Mr. Bonn dated January 27, 2011.
Ms. Massicotte issued her statement of claim in this action on September 23, 2011. At that time, J. David M. Ross, a lawyer in Belleville, Ontario, represented Ms. Massicotte. Ms. Massicotte’s claim also named Shauna Fraser, Jenna Fraser, and Rachelle Fraser (“the FLA plaintiffs”) as plaintiffs pursuant to the Family LawAct A true copy of the Statement of Claim issued on behalf of Ms. Massicotte is attached to this my affidavit as Exhibit “C”.
Augustine Bater Binks LLP was served with a Notice of Intention to Act in Person on behalf of Ms. Massicotte and the FLA plaintiffs on May 10, 2012.
Ms. Massicotte informed Mr. Pretsell on November 15, 2012 that she had entered into a Contingency Fee Retainer Agreement with Greenspon Brown & Associates on November 2012. A true copy of this e-mail was forwarded to Jonathan M.
Richardson, on November
2012, a true copy of which is attached to this my
affidavit as Exhibit “D”.
-413. I am informed by Mary Jane Binks, Q.C., and I verily believe to be true that she was never contacted by Mr. Greenspon in respect of his being counsel of record for Ms. Massicotte. To the best of Ms. Sinks knowledge, Ms. Massicotte continued to act in person, with Mr. Pretsell appearing as her agent at court proceedings in this matter in the autumn of 2012 and winter of 2013. 14. I am informed by Mary Jane Sinks, Q.C., and I verily believe to be true that Ms. Sinks was first advised that Ms. Massicotte and the FLA plaintiffs’ current counsel, Philip P. Healey would be representing Ms. Massicotte at a case management conference of this (and related) actions in February, 2013. 15. Augustine Bater Sinks LLP was served with a Notice of Change of Lawyer by Mr. Healey on May 8, 2013, a true copy of which is attached at Exhibit “D” of the affidavit of Brian Chung.
Intention to Bring an Action
As early as October, 2010, Ms. Massicotte granted an interview to Macleans magazine indicating that she was seeking a lawyer who would represent her in a civil action arising from the attack on her. A true copy of the article published October 5, 2010, is attached to this my affidavit as Exhibit “E”.
Ms. Massicotte granted a series of interviews to Joe Warmington and the Sun Media chain in April, 2011. In those interviews, true copies of which are attached to this
-5my affidavit as Exhibit “F”, Ms. Massicotte indicated she wanted to sue both Mr. Williams and my client and that she wanted “to get both of them on the witness stand. 18. A further interview was granted to Joe Warmington of the Sun Media chain in July, 2011, indicating that Ms. Massicotte’s claim against Mr. Williams and my client had been issued. A true copy of the article written by Mr. Warmington is attached to this my affidavit as Exhibit “G”.
Claim issued in 2011
As can be seen by the Statement of Claim issued on behalf of Ms. Massicotte at Exhibit “C”, the only claim pled against Ms. Harriman was that a domestic contract, and transfer of the matrimonial home into my client’s name alone, was contrary to the Fraudulent Conveyances Act
No further material facts and/or relief was sought against my client at the time the claim was issued.
During the period between the issuance of the statement of claim by Mr. Ross, and the autumn of 2013, no attempt was made by Ms. Massicotte or any counsel on her behalf to amend the statement of claim.
-622. During the period between the issuance of the statement of claim by Mr. Ross and the autumn of 2013, no material facts or additional relief was sought against Ms. Harriman in any form. No correspondence was written by Ms. Massicotte or on her behalf alleging additional relief would be sought or that new material facts came to
light. Amendment to Statement of Claim 23. Augustine Bater Binks LLP was first provided with a draft amended Statement of Claim by Mr. Healey on November
h, 7 t
2013. Mr. Healey stated at that time in his
covering correspondence that “the amendments proposed are not different from that which was originally pleaded” but were in fact, “further particulars.” A true copy of the covering e-mail and draft amended Statement of Claim are attached to this my affidavit as Exhibit “H”. 24. I am informed by Mary Jane Sinks, Q.C., and I verily believe to be true that she was advised by Mr. Healey in a tele-conference dated November
h, 8 t
2013 that he was
considering making further amendments to the Statement of Claim issued on behalf of Ms. Massicotte, 25. Augustine Bater Binks LLP was provided with a copy of the further amended Statement of Claim on November 15, 2013. A true copy of the covering
correspondence and further amended Statement of Claim is attached to this my affidavit as Exhibit “I”.
New Claims in Amended Statement of Claim 26. Despite Mr. Healey’s statement that the amendments are what was originally pleaded, new causes of action have been pled as against Ms. Harriman. 27. In particular, paragraph 63 of the amended Statement of Claim (which is the same as paragraph 67 of the further amended Statement of Claim) states: “The Plaintiffs further plead as against the Defendant Harriman that she was aware of the illicit conduct of Williams; did not report that conduct to the police; has, through the transfer and disiosal of assets of Williams, gained financially from this illicit conduct; and that all of this gives rise to further damages against the Defendant Harriman. 28. The above paragraph is clearly seeking new relief as against Ms. Harriman. The above paragraph alleges that Ms. Massicotte is entitled to further damages (damages above and beyond those alleging the transfer of the matrimonial home is contrary to the Fradularit Conveyances Act) on the basis that Ms. Harriman allegedly had knowledge of Russell Williams conduct and failed to report Russell Williams’ conduct to the police. 29. The further amended Statement of Claim also seeks relief pursuant to the Charter of Rights and Freedoms, and in particular, an Order declaring s.30 of the Pension Actto be void. 30. This claim was never raised in the Statement of Claim issued on behalf of Ms. Massicotte in 2011.
-831. This claim was further never raised at any time prior to November, 2013, when Augustine Bater Binks LLP received the further amended Statement of Claim.
Expiration of Limitation Period
More than 4 years passed from the date of the attack on Ms. Massicotte to the date Augustine Bater Binks LLP received the draft amended Statement of Claim.
Nearly 4 years elapsed between the date Russell Williams was charged with the attack on Ms. Massicotte and the date Augustine Bater Binks LLP received the draft amended Statement of Claim.
Over 3 years elapsed between the date Russell Williams pled guilty to the attack on Ms. Massicotte and the date Augustine Bater Binks LLP received the draft amended Statement of Claim.
years have elapsed since the date of the interview in which Ms.
Massicotte stated she wanted to sue Ms. Harriman and the date Augustine Bater Binks LLP received the draft amended Statement of Claim. 36. Over 2
years have elapsed since the date Ms. Massicotte’s Statement of Claim
was issued and the date Augustine Bater Binks LLP received the draft amended Statement of Claim.
On any reasonable standard, the limitation period for seeking relief against Ms. Harriman has long since expired.
Prejudice Against Ms. Harriman
Ms. Harriman will suffer prejudice if this claim is amended to allow new relief
beyond the expiration of the limitation period. 39. Ms. Harriman has approached these actions on the presumption, given the expiration of any reasonable limitation period arising as against her that no further claims would be issued. 40. The materials filed on behalf of Ms. Massicotte on this motion introduce no evidence whatsoever of the scandalous allegations now being made in respect of Ms. Harriman. 41. I make this affidavit to respond to the affidavit of Brian Chung, dated December 16, 2013.
SWORN BEFORE ME at the City of Province of Ontario on 2014
MICHAEL D. HEIKKINEN
RCP-E 4D (July 1, 2007)
LAURIE MASSICOTTE et aL Plaintiffs and
MARY ELIZABETH HARRIMAN et aL Defendants Court File #: 11-0230
Ontario SUPERIOR COURT OF JUSTICE
Proceeding Commenced at BELLEVILLE
AUGUSTINE’BATER’BINKS LLP 141 Laurier Avenue West Suite 1100 Ottawa ON K1P 5J3 BOX 126 Mary Jane Binks Q.C. LSUC# 12584H Tel: 613569-9500 ext. 116 Fax: 613-569-9522
Lawyers for the Defendant, Mary Elizabeth Harriman
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