BU is aware the ongoing legal battle in the case we have dubbed The Other Side of The Kingsland Matter series continues to be of interest to some. The fact that this matter has tentacled to smear the government of Barbados and many entities which underpin the governance system of Barbados, although not covered in the traditional media, continues to concern BU as patriotic Barbadians. We have therefore taken the time to blog an update on the matter for those who are interested.
On May 4 this year, Justice J. Bryan Shaughnessy of the Ontario Superior Court of Justice ruled that Ontario did not have the authority to try the case of Nelson Barbados Group Limited Vs. Barbados and others. He ruled that Barbados alone had such jurisdiction and he took the opportunity make some disparaging comments about the conduct of , Mr K. William McKenzie of the firm of Crawford McKenzie McLean Duncan and Anderson.
Justice Shaughnessy’s decision can be read on BU or CanLII .
BU family members can note the judge’s position when he stated, “[121] Mr. Ranking, who represents PricewaterhouseCoopers East Caribbean Firm, on behalf of his client and the other represented Defendants, attended at the commencement of the hearing of this motion and requested a date for the hearing of costs on behalf of all those represented Defendants against whom the Plaintiff filed a Notice of Discontinuance on March 23, 2009. Mr. Ranking further advised that he and the other represented Defendants would be seeking an award of costs on a substantial indemnity basis as against the principals of the Plaintiff Corporation and Mr. McKenzie, personally.” As we understand it the statement means that the defendants intended to take the highly unusual step of seeking payment of their costs against the firm of solicitors that represented Nelson Barbados. To our layman’s mind we find this position to be interesting to state it mildly.
In light of the above, the threat did not deter the Nelson Barbados side from filing a NOTICE OF APPEAL dated May 27 2009 against the decision of Justice J. Bryan Shaugnessy. Subsequently, on June 5, they amended this and filed an AMENDED NOTICE OF APPEAL.
Based on our understanding from legal minded members in the BU household there is the belief little is to be got from the appeal and Nelson and its counsel have clearly failed to do anything further about the their appeal, to the extent that on September 21, 2009, Hugette G. Thompson, the Registrar and Manager of Court Operations of the Ontario Court of Appeal, served all parties with the Court of Appeal’s NOTICE OF INTENTION TO DISMISS APPEAL FOR DELAY. Please note the documents attached are public documents which can be had on request.
Meanwhile, Solicitor Ranking’s threats to go after them, K. William McKenzie and the his law firm of Crawford McKenzie McLean Duncan and Anderson has had to come off the record as counsel for Nelson Barbados Group Ltd. and have obtained an ORDER dated September 15, 2009 from Ontario’s Madam Justice Eberhard removing them as Nelson’s counsel.
As Mr. McKenzie and his law firm are now themselves sued for costs, their position to that of their former client has now created a conflict of interest between them. Under Ontario law, they cannot now represent Nelson Barbados and Nelson Barbados has to hire new counsel (or represent itself “in personam”) if it wishes to continue the appeal. “Personam” in this case would need to be its sole officer, Mr. Donald Best.
The Law Society of Upper Canada has an insurance arm for lawyers and law firms sued in this way. It will provide cover up to a reputed $600,000 Canadian and a lawyer to represent the lawyer and law firm. The insurance arm is called LawPro.
Mr. Sean Dewart of the prestigious (mostly specializing in labour) law firm of Sack Goldblatt Mitchell has been retained to represent Mr. McKenzie and his law firm – allegedly retained by LawPro for this purpose.
However, rumour has it that $600,000 Canadian will not be nearly enough to cover this costs bill (if granted) as it is said to be in excess of $1.8 million Canadian.
One of the requirements of coming off the record is that you must supply the court and the other side with full contact details for your former client. Given that Ontario in its Rules of Civil Procedure allows for service by mail, fax and personal service and, in special circumstances, by e-mail attachment, it seems reasonable to suppose that this Rule must be interpreted to mean that all these means of contact ought to be supplied, although judicial discretion may apply here.
Nelson Barbados has not yet retained new counsel, nor has it responded to the Notice of the Court of Appeal through its sole officer, the illusive Donald Best.
Mr. Best has, reportedly, visited Barbados on over 40 occasions in very recent years. While here, he is said to have stayed variously at a (not the) Long Beach hotel and a Chancery Lane private residence. And the hotel would, of course, require that he provide his home address on checking in to the hotel. At least, it the hotel is supposed to require that he does so. And Mr. Best is also obligated to provide an address in Barbados to our immigration – so the name and address of this hotel would be known to immigration.
As for the address of Nelson Barbados? It will be remembered that the address formerly given for Nelson Barbados was the same as that of Mr. McKenzie and his law firm. This has now been replaced……BY A UPS POST BOX IN KINGSTON, ONTARIO.
We also have to wonder if this UPS post box is the same address that was given by Mr. Donald Best to the Barbados Immigration Authorities on the form he would have been required to fill out when entering our country. Or maybe he just gave the address of Mr. McKenzie’s law firm.
Depending on the answers to those questions, we may need to ask when the UPS Post Box was rented. Is it a long-standing rental, or is it recent and established solely to conceal the whereabouts of Mr. Best, Nelson Barbados and its backers and shareholders?
If so, how far can (or will) the Ontario courts go to ensure that Barbados and its citizens who have been sued in this case are fully remunerated for what the Ontario courts themselves have determined to be a blatant attempt at forum shopping in order to go behind a fully litigated decision of the Privy Council in which Ontario has no jurisdiction.
We wait to see. Not for long, though. The dates set for the hearing of the costs motion are in early November, having been adjourned from the August dates originally slated.
The blogmaster invites you to join the discussion.