Superior Court of Justice (PDF) by gjjur4356

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									                                                             COURT FILE NO: 10-8751-00CL

                               SUPERIOR COURT OF JUSTICE
                                   COMMERCIAL LIST

                                  JAMES JOSEPH LUKEZIC





                         AMENDED STATEMENT OF CLAIM


The claim made against you is set out in the following pages.
    IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you
must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it
on the plaintiff’s lawyer or, where the plaintiff does not have a lawyer, serve it on the plaintiff, and
file it, with proof of service in this court office, WITHIN TWENTY DAYS after this statement of
claim is served on you, if you are served in Ontario.
   If you are served in another province or territory of Canada or in the United States of America, the
period for serving and filing your statement of defence is forty days. If you are served outside
Canada and the United States of America, the period is sixty days.
   Instead of serving and filing a statement of defence, you may serve and file a notice of intent to
defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more
days within which to serve and file your statement of defence.
    IF YOU PAY THE PLAINTIFF’S CLAIM, and 750.00 for costs, within the time for serving and
filing your statement of defence you may move to have this proceeding dismissed by the court. If you
believe the amount claimed for costs is excessive, you may pay the plaintiff’s claim and $400 for costs
and have the costs assessed by the court.

DATE: August 27th, 2010                                                Issued by:

                                                                       Local registrar 10th Fl
                                                                       330 University Ave
                                                                       Toronto ON M5G1E6

TO: Irwin A Duncan and White Duncan Linton LLP, 45 Erb St E Waterloo ON and
     Solicitor of Record for the Defendant: Berkow Cohen LLP, Toronto ON c/o Mr. Leigh Youd

FROM: James J Lukezic 4939 Thirty Rd, Beamsville ON L0R1B3 T: (917) 748 1703
         Self Represented for the Plaintiff


(a)The plaintiff claims and alleges the following causes of action: (1) Professional negligence; (2)
fraud; (3) conspiracy to defraud; (4) and intentional/reckless infliction of emotional distress; (5) Res ipsa
(b) The Plaintiff requests monetary damages of 7.5 Million CDN; the value of the business lost
and 10 Million in emotional damages for the subsequent duress and suffering resulting from the
inordinate and poignant negligence, leading to the loss of a family business of 50 years.
(c) Pre-Judgement interest pursuant to the Courts of Justice Act, RSO 1990 cC 43, as amended
(d) Post-Judgement interest pursuant to the Courts of Justice Act RSO 1990 cC 43, as amended.
(e) The costs of this action
(f) Such further and other relief as the Honourable Court may deem just.


1. Mr. James J Lukezic “Lukezic” is the sole shareholder of Walker Hall Winery, an ultra

   premium wine producer located in the Niagara Peninsula.

2. The winery is located on the shore of Lake Ontario in the Town of Lincoln. The winery

   includes a historical manor house that has been fully restored and surrounding vineyards.

   A complex that has been developed significantly since the passing of Lukezic’s father,

   Anton Lukezic Jr, a long time Niagara Vintner.

3. Lukezic organized a successful winemaking team consisting of three doctors of enology

   who travel from Europe to care for the wine product.

4. Lukezic personally has extensive experience in and knowledge of the wine industry and

   the growing of grapes for wine production. Lukezic returned to Beamsville after the

   death of his father, Anton Lukezic, from New York City to assume responsibility for

   operating the family properties. Lukezic is a graduate of Cornell University, Harvard

   University and has significant resume having worked for Merrill Lynch, Citigroup Global

   Markets, Bank of New York and participating as a Visiting lecturer at Princeton



5. In February 2008, Lukezic approached Royal Bank of Canada to provide financing for

   the proposed winery. At that time Miller Thomson LLP of Waterloo ON was my primary

   corporate commercial legal representation. The RBC relationship was solid until month

   three of the business when RBC pulled a Credit Line of 500k.

6. Miller Thomson LLP was unable to act on behalf of Lukezic v. RBC because of a

   conflict, although they felt the pulling of the credit line was illegal. Miller Thomson LLP

   was correct in their assessment and the RCMP commercial fraud unit is currently

   investigating the RBC negligence and their cooperation with a Mr. Joseph Genova

   (President of Cashmoney check cashing stores) see Appendix A attached (RBC claim

   filed March 15, 2010).

7. Miller Thomson LLP directed Lukezic to Mr. Irwin Duncan “Duncan”, a Waterloo based

   litigator who would be willing to take on the case on a contingency basis.

8. In February of 2009, Lukezic retained Duncan to try to obtain his promised but

   undelivered credit line back from the Royal Bank of Canada “RBC”. Duncan was

   extremely confident that the RBC would come back to Lukezic with the promised credit

   line. If they didn’t Duncan enthusiastically threatened serious litigation would ensue, that

   he would “hit them hard.” Duncan had experience with RBC’s then lawyer, a Mr.

   Antonio D’Amico and said D’Amico has been pulling properties for RBC for decades,

   that he makes a living doing RBC’s “dirty work” in the Niagara Peninsula.

9. During the summer months of 2009, Lukezic informed Duncan that Mr. Alfredo

   Degasperis Sr was sending Real Estate agents, lawyers and friends to Lukezic’s winery to

   deliver unsolicited offers on the winery properties. Duncan and Lukezic both assumed

   that Degasperis was behind RBC’s credit line pull – attempting to inject his associate

   Jospeh Genova into Lukezic’s business as a shareholder with the help of then RBC

   account manager Alec Cowan. Lukezic pleaded with Duncan to contact Mr. Degasperis

   so that a potential arrangement could be made for a meeting to discuss his interest in the

   property – Duncan refused; See Appendix B (Degasperis claim filed March 15, 2010)

10. From February of 2009 to October 2009, little happened with RBC as they refused to

   honor their financing obligations and refused to release their GSA (General Securities

   Agreement) so Lukezic could obtain the credit line elsewhere. RBC delivered a notice of

   intention to realize on security in August 2009 and in November after Farm Mediation

   ran its course through the fall months Lukezic and Duncan finally met with a Mr. Ross

   MacFarlane (representing D’Amico) of Fleet Beccario in Welland ON (RBC’s lawyer) at

   a deposition in Hamilton. The deposition was short lived and one in which RBC again

   refused to deliver the credit line. After the deposition was over, Duncan took Lukezic

   aside into an adjacent room and told Lukezic that he was worried about the Degasperis

   involvement, wondering why Degasperis was so intent on obtaining the lands. Duncan

   went on stating that, “if we continue on our present course we’ll both end up in body

   bags”. Duncan said that no one can help Lukezic against Degasperis, not the police,

   government or lawyers; he cited examples from his own personal experience with

   corruption in Ontario’s Native Indian community, where apparently even a Judge’s ruling

   was eventually overruled by corrupt, wealthy business leaders. Duncan mentioned that

   Lukezic could end up in a “dark alley” and continually asked if Lukezic was scared or

   worried for his life.

11. After the above deposition, it became clear to D’Amico that Lukezic wanted the

   promised credit line or Lukezic would sue the bank. D’Amico and Duncan then came up

   with a deal that saw Lukezic getting $150,000.00 for signing a consent of receiver

   document. Lukezic was promised that once BDO (receiver) was installed they would

   work with Lukezic to bottle and ship sold wine. Duncan described the entrance of a

   receiver as something very standard, that it “happens all the time, companies are always

   in and out of receivership during these types of economic times”. Duncan said BDO will

   provide the $150,000.00 for bottling and shipping and once the revenue is generated from

   the bottled wine product, Lukezic could bring the RBC interest up to date and refinance

   the RBC financing package.

12. The consent of receiver was signed and court dated December 23rd 2009 by Justice

   Morawetz in Toronto on the Commercial List. Lukezic worked with a Graeme Whitehead

   of BDO for 45 days to compile supplier information and prepare Lukezic’s ultra premium

   wines for shipment to the LCBO and the United States.

13. At the end of January, once Lukezic had prepared the wine for bottling, the last step was

   to schedule the bottling truck to arrive on site to bottle and ship. The truck was never

   scheduled and Graeme Whitehead was fired or left BDO for a new position at another

   company; a new BDO representative was then assigned. The new BDO representative, a

   Mr. David Ponting of the BDO St Catharines office and who resides in Welland, asked

   Lukezic to leave the property and to never come back.

14. After Lukezic’s encounter with Mr. Ponting, Lukezic called Duncan to inform him of

   what had happened. Duncan informed me that he could no longer represent me in this

   matter and that he was sorry.

15. From early February 2010 to the present Lukezic has been kept away from the business

   as BDO continues to attempt to sell the assets of the Winery. Lukezic has had serious

   difficulty obtaining legal counsel as Lukezic was left with no money and no business

   assets. Lukezic has been forced to attempt to find counsel that will work on a contingency

   basis – something that is an impossibility for a commercial case of this nature and

   especially because of the involvement of Canada’s largest bank and Ontario’s largest land

   developer being opponents.

16. In March of 2010 Lukezic filed claims against both Degasperis and RBC, self

   represented. Lukezic has also filed a claim v. Mr. Joseph Genova.

17. Lukezic, after discussing the Duncan mismanagement with several lawyers, began to

   prepare a motion to nullify the receivership (Appendix C) based on the fact that the

   $150,000.00 bottling money never arrived, leaving Lukezic further exposed and without a

   viable exit strategy.

18. In late May 2010, Duncan was asked to provide an affidavit attesting to the $150,000.00

   deal he made with D’Amico but Duncan refused to provide the affidavit. Duncan now

   states that there never was a $150,000.00 promise between him and D’Amico of RBC;

   that Lukezic consented to receiver because I had no case. Duncan was also delivered a

   Notice of Examination to appear in the Motion to Nullify the receivership; Duncan

   evaded delivery of the Notice of Examination several times and did not appear for the

   Examination as required by the courts.

19. Lukezic is self-represented in this matter due to the actions of Mr. Irwin Duncan, former

   solicitor of Walker Hall Winery Ltd et al. Lukezic would like to obtain counsel but is

   financially unable to retain counsel due to the actions of the defendants. Lukezic is

   currently involved in related litigation with a Mr. Joseph Genova, Mr. Alfredo

   Degasperis Sr, Royal Bank of Canada, Town of Lincoln, A-1 Label. These matters are all

   connected to the Duncan negligence and all are concerning fraud, negligence, conspiracy

   to defraud and intentional infliction of emotional distress.

20. The discussions regarding the consent to receivership started in early December when

   RBC continued and then finally outright refused to release a credit line of $500,000.00

   promised through its mortgage agreement. Duncan threatened to sue the bank and deliver

   a statement of claim during a deposition with a Mr. Ross MacFarlane (associate of Mr.

   Antonio D’Amico). After this deposition, Duncan told Lukezic there were no other

   options but to sue the bank.

21. Within a week of the above mentioned deposition Lukezic was told that Duncan spoke to

   D’Amico on the phone or otherwise and D’Amico agreed to arrange for a $150,000.00 to

   become available through the then proposed receiver BDO. RBC did not want to release

   the funds because according to them, “RBC doesn’t have the money, BDO however can

   make it available”. Duncan convinced Lukezic to take the deal so that Lukezic could use

   the $150,000.00 in funds to bottle and ship sold wine fulfilling outstanding purchase

   orders, and allowing Lukezic to generate enough revenue to bring RBC up to date on the

   interest; at that point Lukezic would be able to more easily re-finance the RBC debt.

22. The consent document was never shown to Lukezic, only explained to Lukezic over the

   phone. Lukezic signed a signature page that Duncan’s assistant emailed Lukezic and

   Lukezic as requested promptly scanned and emailed the signature page back to Duncan’s

   assistant. Duncan explained that the consent was a standard document; that is a template.

   Lukezic asked Duncan specifically to include the $150,000.00 deal in the design of the

   document, Duncan refused, saying additionally that this is unnecessary and not

   customary. Lukezic found this odd but trusted Duncan at that time.

23. The consent document could have been more protective in the sense that Duncan should

   have illustrated the specific above deal Lukezic agreed to; the $150,000.00 in funding

   from BDO.

24. The inadequate service illustrated in the statement of claim is in regards to the consent

   document; how it was prepared, how it was explained, how it was presented, how it was


25. The improper conduct illustrated in the statement of claim is in regards to the consent

   document is the illusory way in which Duncan presented the consent of receivership and

   its execution. Duncan told Lukezic that a receivership is something that happens all the

   time that companies are in and out of receivership and that this was only a temporary

   measure until the wine was bottled and sold. Duncan was care-free about explaining the

   “template consent” document and refused to allow Lukezic into court with him, saying its

   not necessary,

26. Duncan also refused to let Lukezic come into his office to discuss the document in more

   detail. Duncan’s secretary emailed Lukezic a signature page to sign and ship back and not

   to worry.

27. Mr. Duncan knew of Mr. Degasperis’ interest in the Lukezic properties as Lukezic

   informed Duncan throughout the relationship of all of the visitors to the winery via

   Degasperis; property offers, threats, extortion etc. This all culminated in December 2009

   when Duncan took Lukezic into a adjacent room after the MacFarlane deposition and

   spoke frankly regarding Degasperis and his involvement in the RBC litigation. Duncan

   told Lukezic that a lawsuit was not a good idea in this situation, that Degasperis is

   politically connected and that Duncan has experience with people like this.

  28. Duncan informed Lukezic during this meeting that if RBC was to be sued Lukezic and

     Duncan would end up in body bags or in a dark alley.

  29. Mr. Duncan by engaging Lukezic in this conversation illustrated bad faith and improper

     service since he did not advise Lukezic in terms of his legal options but set out on a

     mission to intimidate, threaten and strike fear into Lukezic for reasons unknown.

  30. Duncan, if scared of Degasperis, should have stepped down as solicitor, he did not; he

     aided RBC and Degasperis in intimidating Lukezic, threatening Lukezic and assisted in

     the demise of Lukezic and his business. Duncan should have informed Lukezic at that

     time that he was not interested in delivering a statement of claim to RBC which was the

     primary reason Lukezic hired Duncan in the first place.




  31. Mr. Irwin Duncan is responsible for participating in conspiracy, the test set out in Canada

     Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23

     (S.C.C.), [1983] 1 S.C.R. 452, [1983] 6 W.W.R. 385 [Canada Cement], at 471-71 must

     be met:

     The law concerning the scope of the tort of conspiracy is far from clear although Lukezic

     is in the opinion that the law of torts does recognize a claim against Duncan in that the

     tort of conspiracy exists if:

       (1) whether the means used by the defendants are lawful or unlawful, the

       predominant purpose of the defendants' conduct is to cause injury to the

       plaintiff; or,

       (2) where the conduct of the defendants is unlawful, the conduct is directed

       towards the plaintiff (alone or together with others), and the defendants should

       know in the circumstances that injury to the plaintiff is likely to and does


32. Duncan conspired with Mr. Antonio D’Amico of Fleet Beccario LLP to defraud

   Lukezic of his winery business. Lukezic is not naïve and would not consent to a

   receivership after a year of litigation leading to a lawsuit v. RBC. Assuming for a

   moment the defendant is correct in stating that Lukezic “outright” consented to

   receivership, why then did Lukezic spend 45 days working with the receiver to

   bottle and ship sold wine? Was this service performed by Lukezic out of the

   goodness of his heart? The answer is no. Lukezic did not outright consent to

   receivership, he was duped into believing there was a deal on the table for

   additional monies. Lukezic was not correctly briefed as to what the consent

   document meant or why he didn’t sign it in person; only a faxed signature sheet

   was provided. Duncan described this as “standard” and the receivership would be


33. In negligence law the doctrine of res ipsa loquitur states that the elements of duty

   of care and breach can be sometimes inferred from the very nature of the accident,

   even without direct evidence of how any defendant behaved; of which there is in

   this matter. It must otherwise satisfy the following conditions:

   1.      ... it ordinarily would not occur without someone's negligence;

   2.      ... it in this instance probably did not occur without someone's negligence;

   3.      ... it was caused by an instrumentality that was under the exclusive control of the

   defendant; and

   4.      ... it was not caused in any way by the plaintiff

34. Duncan acted fraudulently and in doing so was negligent in his dealings as a professional

   solicitor and confidant to Lukezic; this devastated the Plaintiff Lukezic leaving him

   penniless. Without the negligence of Duncan, Lukezic would not be in a helpless

   position, left with nothing.

35. If the consent was not signed as per the advice of Duncan, Lukezic would have been

   allowed to illustrate his situation to the courts at that time. Duncan effectively took

   Lukezic out of his business and forced Lukezic to lose control of his business.

36. The Duncan negligence was devastating to Lukezic both financially and emotionally.

   Duncan is not an inexperienced Solicitor, so the conduct and timing of the consent is

   suspicious and makes no real sense. The defendants claim that the December 16th court

   date was delayed due to supposed financing coming in to replace RBC’s first mortgage is

   a falsity; nobody including Lukezic is going to arrange financing a week before


37. Duncans behavior and professional conduct was disgraceful and nonchalant. German and

   Law Society of Alberta (1974), 45 D.L.R. (3d) 535 (C.A.), Re Merchant and Law Society

   of Saskatchewan (1972), 32 D.L.R. (3d) 178 (C.A.). For a lawyer s conduct to be

   regarded as professional misconduct or conduct unbecoming a barrister and solicitor, it

   must be such as can “reasonably be regarded as disgraceful or dishonourable by his

   professional brethren of good repute and competency”. Duncan should have requested

   that Lukezic obtain new counsel; not participate in a conspiracy to defraud Lukezic of his


38. Duncan’s Fraud can be detailed using Niagara Falls (City) v. Mingle, [1998] O.J. No.


    The four main elements of fraud or deceit are:

   1.      there must be a false representation of fact;

   2.      the representation must be made with knowledge of its falsity;

   3.      the representation must be made with the intention that it should be acted upon by
           the plaintiff in the manner which caused damages to him; and

   4.      it must be proved that the plaintiff actually acted upon the representation and
           suffered damages. (See: Bradford Building Society v. Borders, [1941] 2 All E.R.

39. Duncan represented the consent document as “a template document”. Duncan is not

   inexperienced, he knew that this “simple document” as he illustrated it was a serious

   document that could cause Lukezic irreparable harm. Duncan with his experience knew

   that Lukezic’s family business would be devastated by signing the consent document

   Duncan prepared carelessly. Lukezic acted on the advice of his counsel, Mr. Duncan and

   worked with the receiver BDO to obtain the 150k in promised funds; those funds never

   arrived and Lukezic was left with nothing, and more devastating not a legal peg to stand


40. The type of conduct which constitutes professional misconduct or conduct unbecoming is

   defined in section 22(2) as:

   (a) is such as to be harmful to the best interests of the public or the members of the

   Society, or

   (b) tends to harm the standing of the legal profession generally,”

   The legal distinction between professional misconduct and conduct unbecoming

   depends upon whether the conduct occurred in the role of dealing with clients,

   other members of the Law Society, the Courts, or the Law Society, as opposed to

   conduct which occurred in the private life of the lawyer. The latter is referred to

   as conduct unbecoming with the former being professional misconduct. A good

   definition of the legal thought underpinning these concepts is found at page 5 of

   an article in volume 8 [1987] of the Advocates’ Quarterly by Daniel P. Iggers and

   John T. Twohig where it states as follows:

       “Both ‘professional misconduct’ and ‘conduct unbecoming’ have

       traditionally been considered to require an element of moral


41. Mr. Duncan executed his fraudulent scheme with no morals whatsoever.

   He refused Lukezic entry to his office to detail the consent document, he

   refused Lukezic attendance in court; Duncan watched as Lukezic’s

   business got trampled down by the RBC. Duncan was the architect of

   Lukezic’s demise and the demise of a family business in existence for half

   a century.

42. Duncan defrauded Lukezic by deceit. Duncan took advantage for unknown

   reasons and Lukezic was left defenseless v. the RBC from a legal standpoint.

43. Duncan was an integral participant and was the architect of this fraudulent scheme that

   had been established in order to defraud Lukezic of his winery and properties.


44. Mr. Duncan in May of 2010 completed contradicted himself in regards to the deal with

   BDO. Lukezic would not deliver an affidavit to RBC stating his strong case against them

   in November 2009 (Appendix D) if his intention was to Consent to Receivership outright.

45. Mr. Duncan designed a Consent of Receiver document that was not what Lukezic and

   Duncan discussed and presented it to Lukezic as a “standard” document. Duncan knows

   better and should have designed a more protective Consent document.

46. Duncan provided inadequate service and illustrated improper conduct in his design of the

   Consent of Receiver document, leaving Lukezic exposed to RBC and the receiver to do

   as they please from a legal perspective.

47. The improper service of Duncan in the month of December 2009 was a result of his fear

   of Mr. Degasperis and his interference with my RBC financing package and his property


48. Duncan’s mishandling of Lukezic’s matters lead to enormous and devastating loss. Not

   only of a family business valued at 7.5 million dollars that had been in existence since the

   1950’s but of Lukezic’s business reputation and credit; leaving Lukezic virtually



DATE: August 27th, 2010   ________________________________________

                          Mr. JAMES JOSEPH LUKEZIC
                          4939 THIRTY RD
                          BEAMSVILLE ON LOR1B3
                          T: 917.748.1703

                          SELF REPRESENTED FOR THE PLAINTIFF

                             LIST OF AUTHORITIES

1. Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983
   CanLII 23 (S.C.C.), [1983] 1 S.C.R. 452, [1983] 6 W.W.R. 385 [Canada Cement], at

2. German and Law Society of Alberta (1974), 45 D.L.R. (3d) 535 (C.A.), Re Merchant and
   Law Society of Saskatchewan (1972), 32 D.L.R. (3d) 178 (C.A.).

3. Niagara Falls (City) v. Mingle, [1998] O.J. No. 3992)

4. Bradford Building Society v. Borders, [1941] 2 All E.R. 205)

5. page 5 of an article in volume 8 [1987] of the Advocates’ Quarterly by Daniel P. Iggers

   and John T. Twohig


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