The
Le Sélect Bistro
Trials

 

TORONTO, Dec. 6, 1999 -- An extraordinary event took place this day. After resisting for over two years; after three judicial hearings, two personal court appearances (a year apart, both leading to judgments against him), one suspiciously misplaced registered mailing; after being subjected to a cross-examination of four hours' duration by consultant Uriel Wittenberg, having his bank accounts at CIBC garnished, and being summoned to Court together with his bankers when they in their turn failed to comply with the garnishment order; and after unknowable wrangling, recriminations, hair-pulling, teeth-gnashing and eruptions of fury in late-night, closed-door strategy sessions with his legal eagles at McCarthy Tétrault ...

... Bistro owner Fred Geisweiller finally bites the bullet and concedes defeat!

His long-delayed payment for services rendered is extracted at last.

 

OVERVIEW

by Uriel Wittenberg (uw@urielw.com)

December, 1999

I provided software development and other consulting services to Frederic Geisweiller, owner of the downtown Toronto restaurant, Le Sélect Bistro, from 1987 to 1997. Geisweiller and his staff have for years made daily use of the software applications I developed. One such application, referred to as the Remanco Interface System (RIS), was initially developed in 1987 and continues to be used 12 years later. The application provides a variety of detailed sales and other reports, which Geisweiller and I spent many hours designing and refining over the years. The application includes a database which is updated at the end of each day via a download from the restaurant's Remanco computer. (The Remanco system is used by many restaurants worldwide to communicate waiter orders to the kitchen and print customer checks.)

In 1997, Geisweiller refused to pay an invoice for $800 submitted following two days of work at his office. I sued for $1120 (he had forfeited his prompt payment discount), and a trial was held in Toronto Small Claims Court. Geisweiller and I each represented ourselves. The decision found Geisweiller's debt "clear and unequivocal" and awarded me full judgment for the amount claimed.

Geisweiller then hired one of Canada's major law firms, McCarthy Tétrault, and appealed to the Ontario Superior Court of Justice. The basis? No reference was made to the substance of the matter. Instead, they claimed Geisweiller's linguistic rights as an Ontario Francophone had been violated in the English hearing. Although the trial transcript shows Geisweiller explicitly agreeing to proceed in English ("Very good, we will proceed.... All right.... Fair enough"), McCarthy Tétrault prevailed. The lower court judgment was thrown out, and a new, bilingual trial ordered.

The second trial -- in French and English, this time -- took place Sept. 1, 1999. Again the ruling went against Geisweiller, ordering him to pay for the work I had done for him two years earlier. But this was still not enough. Geisweiller chose not to comply with the order. What had begun in 1997 as a breach of contract with a consultant who had served him faithfully and well for 10 years, appeared at this point to have developed into outright defiance of the judicial authorities.

For all the legal activity, the basic issue in this case is extremely simple and obvious. Back in 1987, Geisweiller voluntarily entered into a clear, easy-to-understand contract with me, under which he would pay hourly fees for services. I routinely provided services under the terms of this contract for 10 years. In April, 1997, he requested service as he had many times before. He observed me working two full days for him at his office. He then refused to pay. He didn't trouble to tell me he disagreed with the invoice. He simply ignored it, and neglected to return phone messages or respond to two letters I wrote him. Thus ended a 10-year business relationship.

This matter persisted even beyond my lawsuit's repeated successes in the courtroom, because I was up against a special kind of recalcitrance. But by dint of methodically putting in motion the judicial system's procedures at the prescribed intervals, I finally received, in the dying days of the old millennium, the fees owing for my 1997 work. Thank goodness I am a patient fellow.

This website provides access to the relevant documents so visitors can see the details of Geisweiller's campaign of resistance.

The Documents / Timeline

  • October 24, 1997: Wittenberg's Claim:

    Claim No. T6322 1997 for $1120, filed in Toronto Small Claims Court, states simply: "Fourteen hours of services rendered at LSB April 14-15, 1997. Payment refused. Fees are $80/hour."

    The claim is sent to Geisweiller's attention at Le Sélect Bistro by registered mail (#76084121128/7562).

  • February 24, 1998: Default Judgment:

    A Default Judgment is issued in Wittenberg's favor, since Geisweiller has failed to respond to the claim.

  • March 5, 1998: Geisweiller's Affidavit in Support of Motion to Set Aside Default Judgment:

    Geisweiller files a motion to have the Default Judgment set aside, stating in the accompanying affidavit:

    The motion is to set aside the default judgment in the above noted matter. I had no knowledge that proceedings had begun against me / Le Sélect Bistro. I am not aware that the claim was served on me. I wish to defend this matter as the plaintiff's claim is without basis.

    The motion is granted and a trial is scheduled.

  • April 23, 1998: Geisweiller's Statement of Defense, and ...

  • April 30, 1998: Wittenberg's Response

  • September 8, 1998: The First Trial

  • June 21, 1999: Appeal by Geisweiller (represented by William McDowell, a partner in McCarthy Tétrault's Litigation Section) to the Ontario Superior Court of Justice:

    • Wittenberg's Factum (legal argument): leselect.doc
      (41-KB MS Word document)

    • The Decision: New trial ordered, bilingual this time.

  • September 1, 1999: Trial #2. Geisweiller is again represented by McCarthy Tétrault. Wittenberg represents himself.

  • October 5, 1999: Notices of Garnishment served on Geisweiller and the Canadian Imperial Bank of Commerce, where he has accounts. The Notice of Garnishment advises the garnishee (i.e., the CIBC): "YOU ARE REQUIRED TO PAY to the clerk of the Toronto Small Claims Court within ten days."

  • October 19, 1999: Wittenberg has a chat with the very amiable though somewhat standoffish Christine Lonsdale of McCarthy Tétrault, Geisweiller's attorney at the September 1, 1999 trial. She says she will attempt to sort out the matter of payment this week; but for whatever reason, this does not happen.

  • November 12, 1999: The Court advises that CIBC has not responded to the Notice of Garnishment. Wittenberg calls Derek Berkhout, CIBC's account manager for Le Sélect Bistro, to inquire. Berkhout advises that LSB funds have been put on hold but have not been sent to the Court. He cannot explain why not, but agrees to look into the matter and call Wittenberg back. He does not.

  • November 17, 1999: The Court confirms that the funds have still not been received, either from CIBC or Le Sélect Bistro. At the Court's suggestion, Wittenberg sends the Court a fax requesting that the garnishee (CIBC) be placed on the trial list for failing to respond as required by law.

  • November 17, 1999: The Court issues a Notice of Trial, summoning Geisweiller, the Canadian Imperial Bank of Commerce, and Wittenberg to a December 10, 1999 hearing.

  • December 6, 1999: A very special day! The patiently awaited payment for services rendered to Geisweiller in April, 1997 ... plus costs ... plus interest ... plus the garnishment fee incurred a month after the second trial ... arrives in Wittenberg's mail!

 

To be Continued ...?

Le Sélect Bistro in the News

  • July 14, 1999: The National Post publishes Restaurateur abusing legal system, plaintiff says, describing how Geisweiller, represented by McCarthy Tétrault, succeeded in overturning his 1998 trial by alleging that his French language rights had been violated, despite his consent during the trial to proceed in English.

  • July 14, 1999: The Montreal Gazette and The Ottawa Citizen publish essentially the same article as The National Post (all three belong to the Southam News Group) .

  • September 10, 1999: The Lawyers Weekly publishes Francophone Wins New Small-Claims Trial. The article quotes William McDowell of McCarthy Tétrault, the lawyer who successfully argued that Geisweiller's language rights had been violated, stating that Geisweiller's 1998 trial, if allowed to stand, would have threatened to "significantly gut minority language rights in Ontario."

  • October 8, 1999: The Lawyers Weekly prints a letter from Wittenberg arguing that, despite McDowell's high-flown rhetoric, McCarthy Tétrault has actually harmed the cause of Canadian unity by abusing laws intended to protect linguistic rights in order to help a client evade a clear debt.

  • December, 1999: Cité libre, Winter, 2000 issue: An Evasion of Justice, an opinion piece by Wittenberg, presents this case as "an almost unique slant on the issue of bilingualism: an example of pro-unity legislation distorting justice administration and clearly leading to what practically anyone can recognize as an evasion of justice by a guilty person."

See also: This affair is also discussed in a section, beginning in chapter 70, of Inside China's Diplomacy School.

2005 UPDATE!

See: Restaurateur's Heroism Tale Smells Fishy.

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