offer to settle
An update in my ongoing battle with Kim Whaley.
We will be proceeding with the initial case of negligence against her, and her claim for fees.
They served me with an appointment for discoveries which I attended. Due to my health I was unable to complete the undertakings. I had done most of them and was completing the last few when she took me to court to get an order for the rest of the undertakings and got costs of $1500 against me.
Recently I received, from the court, and Administrative dismissal of my case as it had not been set down for trial within five years. I will be moving to set this aside.
There are number of reasons that it was not set down within five years.
My health has not been good for the last several years. It forced me to close my office and give up the active practice of law. I was under doctor’s orders to rest and not work.
While this was going on she brought another claim against me for libel and slander. It will be interesting because what I wrote is the truth as I experienced it.
At the same time I was concentrating on the Estate Case.
To significantly add to the length of the case was the decision by Whaley to take advantage of a rarely used rule to delay my ability to examine her until my discoveries were completely finished. This is most unusual as most discoveries between the parties are carried on over the same period of time. This decision caused significant delays. I advised them in writing and reminded them of my health, suggesting that delaying my discovery of Whaley could be impacted by my health causing further unnecessary delays.
Before this Whaley brought a Summary Judgement Motion. These are relatively new procedures where appropriate matters are disposed of when the facts are not seriously in dispute if the moving party can show that there is no issue for trial. These are generally not appropriate for Solicitor’s Negligence cases.
it is even more inappropriate in these circumstances where I have not examined Ms. Whaley on my allegations of negligence.
Somehow in her arrogance she claims to have followed my instructions and behaved professionally and competently.
I will not get into all of the questions I have to show how poorly she served me and how she overcharged me. I will save that for my examination of her.
Here are just a few of my complaints about her negligence:
- She served an offer to settle which left out all of the bank accounts that I was claiming. The other counsel brought this up many times in suggesting that I was not originally seeking the bank accounts.
- in my first conversation with her we discussed the importance of pinning down the evidence of Norman Yu my father’s broker. There were several instances in the correspondence where I instruct them to do this, urge them to do this, and they did not. As a result Norman Yu had four years to make up evidence which was false. Had Whaley done her job, that false evidence would not have cost me the case.
- When in August 2012 we brought a motion before Justice Nordheimer to freeze the funds. The evidence of Norman Yu, which was that Harold Laski made it clear that all of the money was to go to Wendi somehow wasn’t raised in this hearing. Because it wasn’t true. And we really never pinned down the evidence of Norman Yu.
- Before the same hearing I instructed Whaley’s office to seek repatriation of any funds that were missing and costs. She refused to follow these instructions to my detriment,
- Although she originally estimated $20,000 to bring an application and get an order for directions. I had paid her approximately $35,000. In October she presented me with another bill in the same range, telling me that these were legitimate charges from June which were “missed.”
- She went ahead and lied saying that I promised to pay the balance.when I saw I was paying almost $10,000 a month and seeing little or no result, I had no intention of continuing with her never mind paying her for this new predatory bill.
There are many other issues relating to her poor handling of my case, the predatory fees, and the lack of professionalism in dealing with me as a client.
Even if she gets to proceed with the Summary Judgement Motion, I will be appealing in arguing that it was not the appropriate forum for a Solicitor’s negligence case.
On top of that, resolving that case will not resolve the slander and defamation case she brought. The facts of that case will be very similar to the one for which she has sought Summary Judgement. The article over which she is suing me, is true, because it’s based on and framed in terms of my opinion and experience of her.
Then there’s the complaint to the Law Society. It is primarily a complaint that repeats the libel and slander claim. The only difference is that she has included a claim against me for recording our initial conversation. She takes the position that lawyers are not supposed to record other lawyers. I never dealt with her as a lawyer. I dealt with her as a client. I am glad I recorded the call because she made a number of representations that she did not fulfill.
The other aspect of that complaint which shows the ethics of Whaley and her lawyers is that originally when I told Whaley about the recording, she threatened me professionally if I ever use them. Subsequently her lawyer, wanted the recording, and in writing represented that if I gave them copies, she would not report me to the Law Society. True to her ethics she did report me.
Interestingly enough, on the complaint itself that was sent to the Law Society, Whaley lists her lawyer as Valery Edwards, Law Pro lawyer.
Law Pro is the insurance provider for lawyers in Ontario. They provide defenses when lawyers are sued. How dare they file a complaint to my professional governing body suggesting that Law Pro is behind the complaint. I have written to Law Pro to inquire and complain about what I consider to be improper conduct. I have twice written to the head of Law Pro and have not received an answer.
The issues surrounding the estate Case were troubling enough. To find myself still fighting this arrogant and vindictive lawyer means I can’t let go of this case yet.
As I’ve said before, if she had pursued my case as viciously as she has pursued me, we might not be in this position.
The above is the opinion and experience of the author as a litigant and a victim.