Court File No.: T-2084-12 FEDERAL COURT BETWEEN: UNITED AIRLINES, INC. Plaintiff and DR. JEREMY COOPERSTOCK Defendant DEFENDANT / MOVING PARTY REPLY Dated: January 31, 2014 DR. JEREMY COOPERSTOCK 392 Grosvenor Avenue Westmount, Québec H3Z 2M2 Tel: 438-808-6463 jcooperstock@gmail.com Defendant / Moving Party
TO: GOWLING LAFLEUR HENDERSON LLP 1 Place Ville Marie, 37th Floor Montreal, Quebec H3B 3P4 Me Hélène D Iorio Tel: 514-392-9564 Fax: 514-878-1450 Me Lee A. Johnson Tel: 514-392-9502 Fax: 514-876-9502 Solicitor for the Plaintiff, United Airlines, Inc.
- 1 - Court File No.: T-2084-12 FEDERAL COURT BETWEEN: UNITED AIRLINES, INC. Plaintiff and DR. JEREMY COOPERSTOCK Defendant REPLY OF THE MOVING PARTY, DR. JEREMY COOPERSTOCK A. OVERVIEW 1. The Defendant, Dr. Jeremy Cooperstock is appealing the Order of the learned Prothonotary refusing to strike out abandoned/withdrawn claims in the Statement of Claim and refusing to award Dr. Cooperstock costs thrown away. 2. Regrettably, the Plaintiff has used its responding motion record to attack Dr. Cooperstock personally by accusing him of causing unnecessary delays and withholding consent to amend the Statement of Claim. As explained below, these allegations are false and serve the purpose of creating prejudice against Dr. Cooperstock and deflecting attention from the question of law that this appeal raises.
- 2-3. Striking out abandoned/withdrawn claims from the Statement of Claim is particularly necessary in the present case due to the repeated attempts of the Plaintiff and its counsels to create prejudice against Dr. Cooperstock even at the cost of misleading the courts, a conduct that has attracted the attention of the Barreau du Québec (investigation no.: # 2013-00188612-DE). B. NO NEED FOR AN ORAL HEARING 4. Dr. Cooperstock submits that it would be more expedient if the present motion were decided in writing, since the positions of both parties are already before the Court by way of written submissions. 5. Dr. Cooperstock has advised the Plaintiff on multiple occasions that he would have an exceptionally heavy workload between January and April 2014. Thus, the Plaintiff is fully aware of the hardship that it would cause Dr. Cooperstock had he been required to attend a hearing in person in this period, especially on short notice. 6. The sole purpose of the Plaintiff s request for an oral hearing is to interfere with Dr. Cooperstock s ability to meet his obligations to his employer and to create hardship for Dr. Cooperstock, as the Plaintiff has done in the past in bringing a motion without canvassing Dr. Cooperstock about his availabilities. C. MISSTATEMENT OF THE ISSUES AND DR. COOPERSTOCK S POSITION 7. The Plaintiff did seek monetary damages in its Statement of Claim. As the Plaintiff stated at paragraph 7 of its submissions, the Plaintiff is no longer claiming monetary damages. Retaining these abandoned/withdrawn claims in the Statement of Claim serves no purpose other than creating prejudice.
- 3-8. Thus, the main issue is whether these claims should be deleted from the Statement of Claim. 9. The Plaintiff appears to confuse claim with action at paragraphs 3 and 11(ii) of its submissions. Dr. Cooperstock did not allege that the Plaintiff abandoned the entire action, but rather that the Plaintiff abandoned certain claim(s) in the Statement of Claim, specifically, the claim for monetary damages. 10. Dr. Cooperstock clearly stated his position at paragraph 30 of his written submissions that he relies on Rule 402 of the Federal Court Rules by way of an analogy, as permitted by Rule 4, in support of the proposition that if a plaintiff abandons a portion of its action, it should be responsible for the costs associated with that portion. D. PREJUDICIAL AND/OR FALSE REPRESENTATIONS BY THE PLAINTIFF (i) Paragraph 28: there is no abandoned or withdrawn claim 11. The Plaintiff falsely claims at paragraph 28 of its submissions that there is no abandoned or withdrawn claim. The Amended Statement of Claim contains a claim for monetary damages, and as the Plaintiff conceded at paragraph 7, the Plaintiff is no longer pursuing this claim. Thus, the Plaintiff has abandoned and/or withdrawn its claim for monetary damages. 12. There is no reason to trust the Plaintiff to refrain from attempting to create a similar confusing at the trial as to what is being sought and what has been abandoned and/or withdrawn. This conduct of the Plaintiff underscores the importance of deleting any claim from the Statement of Claim that the Plaintiff no longer pursues.
- 4 - (ii) Timing of the present motion 13. Contrary to the Plaintiff s submissions at paragraph 1, Dr. Cooperstock brought the present motion in full compliance with Rules 6(3) and 51(2) of the Federal Court Rules. Since Dr. Cooperstock received no assistance from counsel in preparing the present motion, filing the motion record on January 17, 2014 was very difficult. Federal Court Rules, s. 6(3) and 51(2) (iii) Alleged refusal to consent to amendment of the Statement of Claim 14. The Plaintiff incorrectly claims at paragraph 5 of its submissions that Dr. Cooperstock refused to to consent to the Plaintiff s amendment of the Statement of Claim to reflect the merger. 15. The June 10, 2013 Order of Prothonotary Morneau, found in the court docket (Document no. #30, p. 2), confirms that counsel for the Plaintiff misremembers the events: As this remedy is not challenged on its substantial points, the plaintiffs shall be authorized pursuant to the schedule found below under point II to serve and file the Amended Statement of Claim. [Emphasis added.] (iv) Assistance by counsel 16. At paragraph 10, the Plaintiff refers to the fact that Dr. Cooperstock was assisted by counsel during examinations for discovery to suggest that Dr. Cooperstock is not self-represented. Due to his limited resources, unfortunately, Dr. Cooperstock remains unrepresented in the present proceedings, and the exam-
- 5 - inations for discovery were exceptional occasions where he was able to secure the assistance of counsel. (v) Delays in the proceeding 17. While Dr. Cooperstock has consistently complied with the deadlines set by the Federal Court Rules or by the Court, the same is not true for the Plaintiff. The Plaintiff failed to serve its affidavit of documents by the May 13, 2013 deadline that was set by the Prothonotary, and failed to exercise due diligence in amending its Statement of Claim to reflect the merger between United and Continental. 18. Thus, the longest delays in the present proceeding were caused by the Plaintiff s conduct, and the Plaintiff s allegations that Dr. Cooperstock is delaying the proceeding are no more than mudslinging. E. STANDARD OF REVIEW 19. Dr. Cooperstock s consistent position has been that the learned Prothonotary s Order ought to be set aside because it is clearly wrong, was based on a misapprehension of the facts, and was lacking reasons. Dr. Cooperstock also submitted that leaving the Statement of Claim unchanged will cause prejudice and confusion at the trial, as the Plaintiff has been attempting to do on the present motion. 20. Dr. Cooperstock submits that the Order of the Prothonotary is a clear case of misuse of judicial discretion: there is no possible justification for retaining abandoned and/or withdrawn claims in the Statement of Claim.
- 6-21. At paragraph 16, the Plaintiff is taking issue with Dr. Cooperstock s affidavit. The factual background set out in the affidavit is also found in a previous motion record that was dealt with by the Prothonotary (Document no. 4 in the court file), and thus the learned Prothonotary was certainly aware of these background facts. (i) Misapprehension of the facts 22. Dr. Cooperstock sought directions from the Prothonotary, asking for guidance, which is the reason that Dr. Cooperstock limited the amount of documents included; however, the Prothonotary issued an Order. 23. Dr. Cooperstock submits that the Prothonotary had no evidence before him about the conduct of the examinations for discovery, and thus was not in the position to make any findings or draw any conclusions with respect to them as he did. (ii) Lack of reasons 24. The Plaintiff misstates the law at paragraph 18 by claiming that it is settled that even lack of written reasons is not a ground of appeal. Novaphram, cited by the Plaintiff, case can be distinguished from the case at bar in the following observation: [23] The Prothonotary had ample material before her upon which to come to a decision. After all, not only did she have the written record and an oral hearing but also the outcome of three case management conferences. [...] 25. In the case at bar, the principles used by the Prothonotary to conclude that abandoned and/or withdrawn claims need not be deleted from the State-
- 7 - ment of Claim are unclear. It is also unclear what being satisfied with the Plaintiff s approach and position means in this context, as nothing in the Plaintiff s letter refer to the legal principles governing deleting portions of pleadings. F. THE PROTHONOTARY S ORDER IS CLEARLY WRONG (i) No rationale for retaining an abandoned and/or withdrawn claim 26. The Plaintiff does not dispute that it is no longer pursuing its claim for monetary damages. Thus, the Plaintiff has abandoned and/or withdrawn this claim, although it continues to seek other reliefs. 27. Neither the learned Prothonotary nor the Plaintiff were able to identify any reason that would justify keeping claims that have been abandoned and/or withdrawn in the Statement of Claim. The Plaintiff has been unable to point to any authority to suggest that such claims should not be deleted. (ii) Relevance and prejudice 28. Dr. Cooperstock must know what is being claimed against him in order to be able to mount a meaningful defence, and take adequate steps in the process of discovery, including a refusals motion that he must bring by February 28, 2014 as per the Prothonotary s directions. 29. As the present motion demonstrates, the Plaintiff has been playing fast and loose as to whether it has abandoned and/or withdrawn its claim for monetary damages. The Plaintiff says that it is not pursuing the claim for monetary damages in order to avoid answering certain questions on discovery, but the Plaintiff is likely to attempt to reverse its position on trial, as it is attempting to do on the present motion.
- 8-30. This is precisely the conduct that Dr. Cooperstock is asking this Honourable Court to prevent by ordering that the Statement of Claim be amended. 31. Thus, even if paragraph 31 is found to be relevant to the remaining issues, paragraph (h) of the Statement of Claim ought to be deleted. 32. Since the Plaintiff has abandoned its claim for monetary damages, the allegation at paragraph 31 that it has suffered and continues to suffer considerable damages is no longer relevant to the remedies being sought, and as such it serves the sole purpose of creating prejudice against Dr. Cooperstock, and depicting him as profiting from mischief. (iii) Rule 402 is not the basis for seeking amendment of the Statement of Claim 33. Dr. Cooperstock s position has been that retaining a claim that the Plaintiff does not wish to pursue in the Statement of Claim is inappropriate, because it is irrelevant, redundant, and prejudices the fair determination of the matter. These grounds are analogous to what is set out in Rule 221. Dr. Cooperstock has referred to Rule 402 only in the context of costs. (iv) Not pursuing a claim is not a mere narrowing issues 34. There is no doubt that formulating and narrowing issues is part of the discovery and pre-trial process. Such narrowing typically pertains to questions of fact or law (or both), as necessary to determine whether a party is entitled to the relief being sought. In the present case, however, the Plaintiff is not narrowing issues but making a far more substantial change in abandoning an entire relief sought, that of monetary damages against Dr. Cooperstock.
- 9-35. The Plaintiff has been unable to cite any authority to suggest that the Statement of Claim does not need to reflect such a substantial and material change in the nature of the action and in the remedies being sought when an entire relief, such as monetary compensation, is abandoned and/or withdrawn. G. IMBALANCE OF RESOURCES AND SLAPP (i) SLAPP 36. In a Strategic Lawsuit Against Public Participation (SLAPP), brought by a massively powerful corporation against a vulnerable defendant, the plaintiff may make a claim of monetary damages in the hopes of prevailing against the defendant simply by intimidating him or burdening him with the cost of the defence. Such cost includes that of examinations for discovery on the question of alleged monetary damages. 37. The Plaintiff in the case at bar has chosen to bring two parallel proceedings against Dr. Cooperstock, even though the Quebec Superior Court could have heard all claims of the Plaintiff against him in a single proceeding. 38. The Quebec Court of Appeal, in ordering that a hearing of whether the Plaintiff s claim against the Dr. Cooperstock before the Quebec Superior Court should be dismissed as a SLAPP, held that for Dr. Cooperstock, the process itself is the punishment: [15] Le législateur a voulu l intervention du tribunal dès le début de l instance afin de remédier à l injustice alors existante, due à l inégalité des forces respectives des parties en présence. Il a constaté que cette inégalité faussait le processus judiciaire en ce que les frais de défense à encourir et la menace, même peu probable, d une condamnation à une somme élevée avait l effet nocif de faire taire les défendeurs et d empêcher la participation
- 10 - citoyenne au débat public, essentielle entre autres à la protection de l environnement. [16] Le seul fait d intenter une poursuite-bâillon atteint pleinement cet objectif nocif, peu importe le maintien ou le rejet de l action à la fin du procès, alors que deux ou trois années se seront écoulées. Cooperstock c. United, 2013 QCCA 1670 (ii) Imbalance of resources is relevant 39. Allowing a powerful party to abandon and/or withdraw a claim for monetary damages without any cost consequences would encourage such parties to bring meritless claims, and would leave vulnerable defendants unprotected. The purpose of Rule 402 is to protect against such abuse, and deter litigants from wasting valuable judicial resources. 40. Thus, the striking imbalance of resources between the parties in the present action is a relevant consideration not only for deleting abandoned and/or withdrawn claims from the Statement of Claim to protect a vulnerable defendant, but also with respect to costs thrown way. The Plaintiff can easily afford to pursue a meritless claim for monetary damages, but Dr. Cooperstock cannot. H. COSTS 41. Dr. Cooperstock submits that in addition to the reasons set out in the motion record, no costs ought to be awarded against him even if he is not successful on the present motion, because the Plaintiff has been less then forthright both about the conduct of Dr. Cooperstock and about its own position as to whether the claim for monetary damages has been abandoned and/or withdrawn.