You are on page 1of 6

CITATION: Quenneville v.

Volkswagen, 2016 ONSC 4607


COURT FILE NO.: CV-15-537029-CP
DATE: 20160727
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:

Matthew Robert Quenneville, Luciano Tauro, Michael Joseph Pare,


Therese H. Gadoury, Amy Fitzgerald, Renee James, Al-Noor Wissanji,
Jack Mastromattei and Jay MacDonald, Plaintiffs / Moving Parties
AND:
Volkswagen Group Canada Inc., Volkswagen Aktiengesellschaft,
Volkswagen Group of America Inc., Audi Canada Inc., Audi
Aktiengesellschaft, Audi of America Inc. and VW Credit Canada Inc., /
Defendants
AND:
Joshua Merchant, Anthony Tibbs and Merchant Law Group LLP,
Responding Parties

BEFORE:

Justice Edward P. Belobaba

COUNSEL: David F. OConnor and J. Adam Dewar for Plaintiffs / Moving Parties
Brian Moher for Joshua Merchant and Anthony Tibbs / Responding Parties
Robert Bell for the Volkswagen and Audi Defendants
No one appearing for Merchant Law Group LLP / Responding Party
HEARD:

July 13, 2016


CONTEMPT OF COURT MOTION

[1]
The plaintiffs in this proposed class action bring a contempt of court motion
against the Merchant Law Group LLP (MLG) and two of its lawyers, Joshua Merchant
and Anthony Tibbs, for allegedly breaching an Order of this court.
[2]
On December 4, 2015 I granted carriage of the Volkswagen class action in Ontario
to a consortium of eight law firms. I stayed the Ontario action brought by MLG and I

- Page 2 -

ordered that no other similar class action shall be issued or be continued without leave
of this Court.
[3]
Having granted carriage of the Ontario class action to the eight-firm consortium, I
assumed that MLG would understand that they could not scoop Ontario residents for
any class actions that they were planning outside Ontario. Unfortunately, MLG did
exactly that. In an email blast in January, 2016 to about 9500 recipients, including 3500
in Ontario, MLG invited the recipients to retain MLG for either a individual-joinder
action or a class proceeding. Attached to the emails was a retainer agreement that was
signed and returned by some 150 Ontario residents.
[4]
The plaintiffs brought an immediate motion to address the issues raised by the
January email blast. The motion was argued on February 3, 2016. The defendant
Anthony Tibbs attended on behalf of MLG. I suggested to Mr. Tibbs that the MLG email
blast may well be misleading and in breach of the December 4, 2015 Carriage Order.
MLG to its credit agreed to de-escalate the situation and consented to an order
requiring MLG to immediately send out a clarifying email, not execute any of the 150
retainer agreements received from Ontario residents and file an affidavit confirming that
this had been done.
[5]
In a hand-written Endorsement dated February 3, 2016 I set out these three points
and promised that written reasons explaining why the January emails were in breach of
the Carriage Order would be released next week. On February 12, 2015 I released those
reasons.1 I noted that the January emails, in essence, urged the recipients to join an MLG
class action. I found that they were misleading and in breach of the Carriage Order
because MLG was trying to scoop Ontario residents for what could well become an
MLG class action.2 I advised the parties that if there were any further breaches of the
Carriage Order, the appropriate remedy was a motion for contempt of court that could
be brought before me on 24 hours notice.3 I concluded that MLGs breach of the
Carriage Order was deserving of censure and condemnation and I awarded costs to the
plaintiffs on a substantial indemnity basis.4
[6]
Counsel for the plaintiffs have now discovered to their dismay that MLG
continued to email Ontario residents despite what was said in the February 12, 2016

Quenneville v. Volkswagen, 2016 ONSC 959.

Ibid., at paras. 1, 5 and 7.

Ibid. at para. 9.

Ibid., at para. 16.

- Page 3 -

Endorsement. They point to emails sent by Joshua Merchant on February 8, by Anthony


Tibbs on February 15 and 16, and by two other MLG lawyers on February 16 and 19.
The plaintiffs move that the defendants Merchant, Tibbs and MLG be found in contempt
of court.
[7]
The gist of the plaintiffs complaint is that contrary to the order of this court, MLG
has continued to recruit Ontario residents for an MLG class action.
Applicable law
[8]
It is well settled in Canadian common law that what is required to establish civil
contempt is proof beyond a reasonable doubt of an intentional act or omission that is in
breach of a clear court order of which the alleged contemnor has notice.5 The court order
must state clearly and unequivocally what should and should not be done6 and the party
allegedly in breach must have intentionally done the act that the order prohibits.7
Analysis
[9]

For the reasons set out below, the motion for contempt of court must be dismissed.

[10] The impugned February emails to Ontario residents were careless, unprofessional
and arguably in breach of the December 4 Carriage Order as clarified by the February 12
Endorsement, but I am unable to find that contempt of court has been established beyond
a reasonable doubt.
[11] The core complaint against each of the defendants is that contrary to the December
4 Carriage Order (as clarified by the February 12 Endorsement) they tried to scoop
Ontario residents for an MLG class action. The plaintiffs point primarily to the fact that
the agreement attached to the impugned emails retained MLG to represent [the Ontario
resident] in individual proceedings by joinder or in class proceedings As I indicated
to counsel, trying to scoop even Ontario residents for a joinder action was not in breach
of any clear and unequivocal order of this court. The breach was in trying to scoop
Ontario residents for an MLG class action.
[12]

I will now consider the conduct of each of the defendants.

Carey v Laiken, 2015 SCC 17 at para. 38.

Ceridian Canada Ltd. v. Azeezodeen [2014] O.J. No. 3102 at paras. 31-34 (S.C.J.); affd 2014 ONCA 656.

Carey, supra, note 5, at para. 35.

- Page 4 -

(1) Joshua Merchants February 8 email


[13] Joshua Merchants responding email of February 8 to Ontario resident Roy invited
Mr. Roy to join the MLG individual/joinder action. The attached retainer agreement,
however, was not restricted to the joinder action but also referred to class proceedings.
Nonetheless, I am unable to find contempt of court beyond a reasonable doubt for two
reasons:
(i)

The first requirement for a contempt of court finding is a clear and unequivocal court
order. Here, it was only in the February 12 Endorsement that this court made clear that
trying to scoop Ontario residents for an MLG class action was a breach of the
December 4 Carriage Order. Mr. Merchants February 8 email preceded the February
12 clarification. Thus, it cannot be said that on February 8 he breached a clear and
unequivocal court order;

(ii)

While it is true that the retainer agreement that was forwarded to Mr. Roy refers to
class proceedings the body of Mr. Merchants email speaks only about joining the
individual action. Given this very specific language in the covering email, I am not
persuaded beyond a reasonable doubt that Mr. Merchant intended to scoop Ontario
residents for an MLG class action.

[14]

The contempt of court motion against Joshua Merchant is dismissed.


(2) Anthony Tibbs February 15 emails

[15] Anthony Tibbs responded to email inquiries from Ontario residents Berry, Roy
and Deans. With each emailed response he attached the retainer agreement that explicitly
referred to both individual proceedings by joinder and class proceedings. The latter
reference (at least for Ontario residents) is in breach of the Carriage Order. But here
again, although I ascribe extreme carelessness to Mr. Tibbs, who was in court on
February 3 and must have understood the courts concerns, I am unable to find him guilty
of contempt beyond a reasonable doubt. I say this for two reasons:
(i)

Mr. Tibbs covering email letter in each of his three responses spoke mainly about the
Ontario resident retaining MLG in a joinder action;

(ii)

It is true that the last paragraph of the two-page email mentions being part of a class
action depending on how matters develop. However, Mr. Tibbs explains in the email
that MLG is pursuing class actions in Alberta and Saskatchewan, and other lawyers
[i.e. the consortium] are pursuing similar actions in Ontario and elsewhere. He then
says this to the email recipient:
We do not yet know which class proceeding will be approved by the
court or whether or not you will be part of the class that a court
ultimately certifies. We will know more over the coming months and
will keep you informed of any major developments in the litigation.

- Page 5 -

[16] While technically true, what Mr. Tibbs said was disingenuous. Mr. Tibbs is an
experienced class action lawyer. He understands provincial certification requirements. He
must know that the chance that the Ontario action against Volkswagen will not be
certified is remote. Indeed, there is every likelihood that the Ontario action will be
certified for settlement purposes. Tibbs emails are, at the very least, misleading.
[17] Nonetheless, given what is said in the covering email, I cannot find beyond a
reasonable doubt that Mr. Tibbs was deliberately and wilfully trying to scoop Ontario
residents for an MLG class action. Undoubtedly, he was trying to scoop Ontario residents
for a joinder action but not for a class action, at least not beyond a reasonable doubt.
[18]

The contempt of court motion against Mr. Tibbs is dismissed.


(3) The three other MLG emails

[19] Here again, the complaint about the February 16 and 19 emails that were sent to
Ontario residents by MLG lawyer Iqbal Brar responding to Boehm and Berry and by
someone named Jonathan responding to Boehm, was that they both attached a retainer
agreement that referenced class proceedings. However, as was the case with Mr.
Merchant, in their responding emails Mr. Brar and Jonathan spoke only about
individual or joinder actions and said nothing about class actions.
[20] This being so, I am unable to find beyond a reasonable doubt that Mr. Brar or
Jonathan were wilfully and deliberately trying to scoop Ontario residents for an MLG
class action.
[21]

The contempt of court motion against MLG is dismissed.

Disposition
[22] Because I cannot find contempt of court beyond a reasonable doubt, the motion
must be dismissed.
[23] However, this disposition should not be misunderstood as an endorsement of the
defendants behaviour. About 126 Ontario residents received MLG retainer agreements
that explicitly mentioned class proceedings. This was contrary to the Carriage Order as
clarified by the February 12 Endorsement. Mr. Tibbs was in court on February 3. He
must have heard and understood what was said. Suffice it to say, he should have known
better.
[24] In my February 12 Endorsement I concluded that the defendants January email
blast was deserving of censure and condemnation and I awarded costs on a substantial
indemnity basis. The same comments can be made about the February emails impugned
herein.

- Page 6 -

[25] Here, however, the defendants prevailed on the motion for contempt of court and
strictly speaking could be entitled to costs. However, in my view, given what was done in
the face of the Carriage Order and the February 12 Endorsement, this is not a case for
costs at least not for the defendants. The courts displeasure could be expressed by
simply denying costs to the defendants. But, in my opinion, this would be insufficient.
[26] I note that costs can be awarded against a successful party in a proper case (Rule
57.01(2) and in disposing of a contempt motion the court can make any order as is just
(Rule 60.11(5).
[27] I find it just and proper on the facts of this case that this court express its
displeasure with the defendants conduct by making a costs award payable to the
plaintiffs. Exercising my discretion under Rules 57.01(2) and 60.11(5), I order that the
defendants pay $5000 in costs to the plaintiffs forthwith.8
[28] Finally, so that there can be no misunderstanding on the part of MLG, I order and
direct that any further emails or other methods of contact with Ontario residents from
anyone at MLG inviting Ontario residents to consider or sign a retainer that in any way
suggests that MLG can represent them in a Volkswagen-related class action is a breach of
this court order.
[29]

Order to go accordingly.

Belobaba J.

Date: July 27, 2016

Given the parties costs submissions for the February 3 hearing and given my estimate that the costs incurred
herein were at least the same if not more, I would have expected cost requests in the range of $25,000. The award of
$5000 herein is enough to convey the courts displeasure without being disproportionate or punitive.