Court File and Parties
COURT FILE NO.: 197/09
SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)
RE: in the matter of pol-can trust
BEFORE: Justice David Aston
COUNSEL: David Hager, for Pol-Can Bank Trust, Stan Krol, Marianna Irene Kremblewski and Marek Kulis Christopher Thiesenhausen, for Wladyslaw Kierpiec and Zbigniew Obrebski Andrew Stein, for Peter Waldmann
HEARD AT TORONTO: September 23, 2009
ENDORSEMENT
[1] This motion seeks leave to appeal the order of Sanderson J. dated December 3, 2008 removing Peter Waldmann as counsel for the moving parties and prohibiting them from retaining Christopher Sparling as counsel. For the purposes of the motion, it is conceded that if Mr. Waldmann is properly removed, Mr. Sparling cannot act as counsel.
[2] This particular proceeding is part of a larger picture. A multiplicity of proceedings was extensively case managed and ultimately settled in August of 2007. A settlement was approved by Justice Sanderson on November 15, 2007. She had been involved in the case management process and was familiar with the wide array of issues. The ultimate approval of the global settlement reflected Minutes of Settlement from August, 2007, achieved under the auspices of J. Wilson J. The residual issue from that global settlement is a third passing of accounts in this proceeding, within which these moving parties take positions which create at least some overlap with issues already determined by the Minutes of Settlement.
[3] The test for leave to appeal is set out in rule 62.02(4) and may be satisfied in one of two ways:
(a) the finding that there is a conflicting decision by another judge or court; and the opinion of the judge hearing the motion for leave that it is desirable that leave be granted; or
(b) a finding that there is good reason to doubt the correctness of the order in question and that the matter is of such importance that leave to appeal should be granted.
[4] In this case, the motions judge gave at least four separate reasons for her order but it is clear her primary reason for removing Mr. Waldmann was the appearance of impropriety and concern for public perception of the administration of justice.
[5] I fail to see any conflict between the decision and any decision of another judge or court. Justice Sanderson referred to, and applied, recognized principles and propositions of law and brought them to bear on her analysis of the facts of this case.
[6] Furthermore, I do not find reason to doubt the correctness of her primary conclusion that the appearance of impropriety in the particular circumstances of this unusual case made protection of public confidence in the administration of justice a paramount consideration when balanced against the interests of the moving parties. The motions judge exercised her discretion in a reasonable, reasoned, and judicious manner.
[7] The motion for leave to appeal is dismissed. The respondent trustees are entitled to costs fixed at $10,000 inclusive of GST and disbursements. I do not doubt the time spent in the Costs Outline of counsel for the respondents on the motion but in the circumstances would reduce the hourly rate somewhat on a partial indemnity scale.
Aston J.
Released: October 5, 2009
COURT FILE NO.: 197/09
DATE HEARD: 20090923
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: POL-CAN TRUST
BEFORE: Justice David Aston
COUNSEL: David Hager, for Pol-Can Bank Trust, Stan Krol, Marianna Irene Kremblewski and Marek Kulis Christopher Thiesenhausen, for Wladyslaw Kierpiec and Zbigniew Obrebski Andrew Stein, for Peter Waldmann
ENDORSEMENT
Aston J.
DATE RELEASED: October 5, 2009