Legal game is tough

By David Brown
Ottawa Citizen- A19
Jun 23, 1990

Would you walk onto a football field during a professional game and demand to be allowed to play? To slug it out against tough professionals equipped in ways you're not?  Like playbooks. Helmets. Jock-straps. It wouldn't be unlike challenging the legal system, and wading into it without a lawyer.

Verna and Sydney Moorcroft of Cymbeline Drive, Nepean, thought they had beaten the professionals in the legal game in January.

 Ontario Supreme Court Judge Elmer Smith ruled in their favor in a suit against the lawyer who represented them in the purchase of their home in 1979. The judge ruled lawyer John Kebe negligent in that he failed to inform them a right-of-way ran across the back of their property.

 Kebe was represented by one of Ottawa's top legal gladiators, Denis J. Power.

 The Moorcrofts represented themselves.

 Mr. Justice Smith concluded Jan. 11: "There will be a judgment for the plaintiffs for $1,056.02."

It wasn't much, but the Moorcrofts thought they had won. But they had merely managed to carry the ball for a moment, in a game that wasn't over. Now they face a bill of $14,805.13. It's from lawyer Power. The Moorcrofts fear they will lose their home. The turnaround was dated April 6 and called Supplementary Reasons for Judgment, and signed by Mr. Justice Smith.

 "I regret I inadvertently disposed of costs without hearing submissions from either side. I was reminded that an agreement existed..."

 The reminder was by letter from Power, after the Jan. 11 decision was handed down. The agreement referred to went back to Oct. 10 when the Moorcrofts refused an offer to settle of $2,000. From that point on they ran the risk of being held responsible for further legal expenses.

 "I have reflected hard upon this matter, given the very serious allegations of criminal wrongdoing levelled at the defendant solicitor. The plaintiffs are more sophisticated than most litigants. I trust that their woes will act as a sufficient deterrent for the future."

 The Moorcrofts complained to the Canadian Judicial Council May 14, claiming a closed case had been reopened. They called for "a full public inquiry into the role of the judiciary." The council replied May 23. It said there was nothing wrong with the judge's actions.

 The Moorcrofts may lose more yardage. They are about to discover the power of the assessment office. In a May 29 letter from Power, the Moorcrofts learned the size of the bill and were advised he is having it assessed. When an assessment officer approves a lawyer's bill, he can within 24 hours seize property or money from your bank account.

 Most lay people believe the courthouse assessment office protects them from lawyers who may try to overcharge. It is also a powerful collection arm of the legal industry.  The Moorcrofts feel they have become professional victims. In 1979 a neighbor sued them, forcing them to open the right-of-way behind their end-unit row condominium. Judge Keith Flanigan in 1980 ruled in the neighbor's favor, but his ruling didn't affect 77 other units in which the right-of-way has been taken over by the owners.

 The Moorcrofts felt the ruling was unjust, and hired lawyers to appeal. They lost the appeal and it cost their life savings. Sydney began public protests by walking through the fenced off right-of-way, until he was arrested in 1988.


Additional Notes:


1. Lawyer John Kebe was insured against lawsuits by his professional association the Law Society of Upper Canada.


 2. The Law Society of Upper Canada retained and paid the law firm Nelligan &Power to defend Mr. Kebe.


 3. The $14,000 referred to in this article went to pay for all or part of the bill that the Law Society owed Denis Power for his work in defending Mr. Kebe.


 4. In November 2000, Denis Power Q.C. was appointed a judge of the Ontario Superior Court of Justice in Ontario.