CITATION: Marrocco v. John Doe, 2014 ONSC 5663
DIVISIONAL COURT FILE NO.: 170/14
DATE: 20140929

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Santanna Marrocco, Daniel Brodie, Jo-Anne Marrocco and Riccardo Marrocco, Plaintiffs

AND:

John Doe, Stephen Heft, The Corporation of the Township of King and Belair Direct, Defendants

BEFORE: D. M. Brown J.

COUNSEL:
J. Rosenstein, for the Appellants
L. Quan, for the Respondent, Stephen Heft
P. Ho and A. Gogna, for the Respondent, Doris Brodie

HEARD: September 29, 2014

REASONS FOR DECISION (delivered orally)(corrected)

I. Appeal from a Master’s order removing the plaintiffs’ lawyer of record

[1] One of the plaintiffs, Santanna Morocco, was involved in two motor vehicle accidents on December 9, 2010. The first occurred at 5:00 p.m. when a car driven by Amanda Eckford collided with a car driven by Santanna’s mother-in-law, Doris Brodie, in which Santanna was a passenger. Following that collision, Santanna left Brodie’s car and stood next Eckford’s. About 30 minutes later, the defendant, Stephen Heft, drove down that road, lost control of his car and slammed into Santanna, who was crushed between the two cars. Santanna suffered very serious injuries.

[2] Santanna commenced five actions as a result of that collision. In four of the actions Santanna is represented by the law firm Pape Barristers. In this action, she was represented by another lawyer, Allan Chapnik. The other appellants – Daniel Brodie, Jo-Anne Marrocco and Riccardo Marrocco – are her co-plaintiffs in this action.

[3] Chapnik previously had acted for Doris Brodie in respect of a 2007 motor vehicle accident. In this proceeding Doris Brodie has been named as a third-party.

[4] Doris Brodie moved before the Master for a variety of relief, including an order removing Chapnik as plaintiff’s counsel in this action. By order dated March 10, 2014 Master Brott removed Chapnik as the plaintiffs’ lawyer of record in this proceeding. Master Brott gave extensive written reasons explaining her decision.

[5] The appellants have appealed to the Divisional Court from that order. A preliminary jurisdictional issue arose because under section 19(1)(c) of the Courts of Justice Act an appeal lies to the Divisional Court from a final order of a master, but under CJA s. 17(b) an appeal from an interlocutory order of a master lies to the Superior Court of Justice.

[6] The appellants submitted that this court should revisit previous jurisprudence which held that a decision to remove a lawyer of record is interlocutory, not final, in nature. The appellant submitted that characterizing such an order as interlocutory misplaced the focus on the relationship of the lawyer to the litigation instead of focusing on the rights of the party. In their factum the appellants argued:

The decision to remove a lawyer represents a clash between the competing rights of the parties, in respect of the fundamental right to retain the counsel of their choice. One party wants to keep their lawyer, and the other party wants her former lawyer removed. The decision to remove finally determines that a party will be deprived of her choice. In this case, Brodie (the former client) won that clash, and Santanna (the present client) lost.

For a decision to be considered a final one, it need not finally resolve the ultimate issues between the parties in the litigation. It is final so long as it finally resolves an important procedural right in the litigation.

[7] In the 1987 decision of Iversen v. Smith[^1] a panel of the Divisional Court held that an order removing a lawyer of record was interlocutory in nature. In 1995 the Court of Appeal, in the case of Aptowitzer v. Ontario, was called upon to consider whether an appeal from a judge’s order dismissing a motion to remove a lawyer of record was final or interlocutory. The Court of Appeal held that such an order was interlocutory. In so doing the Court of Appeal expressly agreed with the decision of the Divisional Court in the Iversen case:

We agree with the decision of the Divisional Court in Iversen v. Smith (1987), 1987 4137 (ON SC), 16 C.P.C. (2d) 215, and in particular, where Reid J., delivering the decision of the court, said at p. 218:

Any decision made on the application to disqualify the defendants' solicitors will be irrelevant to the issues in litigation.

If they can have no status in the suit except as representative of a party or parties, we have difficulty in accepting that they can be parties to any issue arising out of the suit. They can have no such independent party status as had the witness in Smerchanski. We are of the view that they do not fall within the ambit of Smerchanski. Since an order disqualifying solicitors will not dispose of any claim raised in the suit and nor can solicitors have independent status as parties, an order disqualifying them cannot be said to be final when measured by the accepted tests.[^2]

[8] Accordingly, the law on this point has been well-settled since 1987: an order removing a lawyer of record is interlocutory, not final, in nature. Although the appellants referred to the comments made in obiter by J. Wright J. in the 2000 case of Kasstan v. Ontario (Public Trustee) to the effect that “in the absence of authority to the contrary I would have held that an order removing solicitors from the record was a final order for which an appeal would lie as of right”, the learned judge, sitting as a single judge of the Divisional Court, acknowledged that the decisions in Iversen and Aptowitzer held to the contrary and he followed those decisions.[^3]

[9] Plaintiffs’ counsel argued that the Divisional Court should revisit this body of jurisprudence. Counsel submitted that the issue of legal representation in a civil proceeding involved a “free-standing issue” as between the parties – in this case the plaintiffs and Ms. Brodie – and, as well, the recent decision of the Supreme Court of Canada in Canadian National Railway Co. v. McKercher LLP[^4] emphasized the importance of the right of a party to select the counsel of her choice, factors which should prompt this Court to re-visit Iversen. I do not accept that submission. As noted, in Aptowitzer the Court of Appeal implicitly rejected the argument that the issue of legal representation constituted some type of “free-standing issue”, holding that an order to disqualify a lawyer of record would not dispose of any claim raised in the lawsuit. Aptowitzer was decided in 1995. Five years earlier, in 1990, the Supreme Court of Canada released its decision in MacDonald Estate v. Martin[^5] in which it expressly considered the “value that a litigant should not be deprived of his or her choice of counsel without good cause”, a principle considered again by that Court in McKercher. All of which is to say that the decision in Aptowitzer was made within an existing legal paradigm which acknowledged the importance to a litigant of the ability to select her own counsel.

[10] In Sun Life Assurance Company v. York Ridge Developments Limited[^6] the Court of Appeal considered the place of procedural rights – including important procedural rights - in the final/interlocutory dichotomy:

As stated in Holmsted and Watson on Ontario Civil Procedure at 62-24: “Ball holds that what the Hendrikson test really means is that to be final an order must deal with the substantive merits as opposed to mere procedural rights, no matter how important the procedural rights may be. The test focuses on whether the order under appeal finally disposes of the rights of the parties, in the sense of substantive rights to relief (in the case of a plaintiff) or a substantive defence (in the case of a defendant).”[^7]

[11] The appellants referred to the 2009 decision of the Court of Appeal in The Plan Group v. Bell Canada.[^8] An application had been brought before a judge seeking the determination of a single issue: whether the commencement of an arbitration under an arbitration agreement required a party to file a written request to arbitrate with an arbitration institute.[^9] The judge declared that the arbitration clause did not require a party to file such a notice of request.[^10] That decision was appealed. An issue arose as to whether the application judge’s order was interlocutory or final in nature. The Court of Appeal held that it was a final order “because it finally determined the only issue raised in the application before the application judge”.[^11] The Court of Appeal observed that the nature and purpose of the interlocutory/final order dichotomy is to act as a gatekeeper for appeals to a higher court in the particular proceeding before the courts. The Court of Appeal continued:

The classic explanation of whether an order is final or interlocutory is that of Middleton J.A. in Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties - the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined. [Emphasis added.]

Here, the merits of the case - i.e., of the application proceeding before the court - have been determined.[^12]

[12] Last year, in Ambrose v. Zuppardi,[^13] the Court of Appeal again considered the issue which it had faced in Smerchanski v. Lewis[^14] about the nature of an order involving securing the evidence of a non-party, but the reasoning in Ambrose strikes me as confined to that specific issue and would not have wider application to orders disqualifying lawyers of record.

[13] Consequently, I see nothing in the reasons of the Court of Appeal in The Plan Group or Ambrose cases which would call into question the reasoning and result of that Court in the Aptowitzer case, including the Court of Appeal’s adoption of the decision of the Divisional Court in Iversen v. Smith. Accordingly, I am bound by those decisions. The order of Master Brott was interlocutory in nature and an appeal properly lies to a judge of the Superior Court of Justice, not to the Divisional Court.

[14] The appellants submitted that in the event this Court decided not to revisit the principle established in the Iversen case, it should exercise its discretion to hear the appeal as one from an interlocutory order, sitting as a judge of the Superior Court of Justice. I am not prepared to exercise such discretion in the circumstances of this case. In my view, at the time Master Brott made her decision the case law concerning the proper route of appeal from an order removing a lawyer of record was quite clear. The appellants chose not to follow that jurisprudence and opted to challenge a principle of appeal procedure which had been settled for many years. I see no reason to reward such an incorrect decision by acceding to the appellants’ request to hear the appeal as a single judge of the Superior Court of Justice. Moreover, the respondents submitted that a limitations issue existed in respect of an appeal to the Superior Court of Justice – the order of Master Brott was made on March 10, 2014, while the Notice of Appeal was not sent out until April 2, 2014, beyond the seven day appeal period from an interlocutory order made by a master: Rule 62.01(2). That issue should be dealt with by a judge sitting as a judge of the Superior Court of Justice.

[15] For these reasons, the appeal is quashed.

[16] The parties agreed that the appellants should pay each of the respondents, Stephen Heft and Doris Brodie, their costs of today in the amount of $3,750, and I so order.

[17] As to the remaining costs of $6,750 sought by the respondent, Doris Brodie, in respect of the other issues on the appeal, the parties agreed that on or before October 14, 2014 the appellants would decide whether they will seek an extension of time to appeal the order of Master Brott to a single judge of the Superior Court of Justice. In the event that they do, the remaining costs of $6,750 claimed by Brodie shall be dealt with by the judge hearing that motion. If the appellants do not, they shall pay Brodie further costs in the amount of $6,750. That agreement strikes me as a sensible one, and I so order.

D. M. Brown J.

Date: September 29, 2014

[^1]: (1987), 1987 4137 (ON SC), 58 O.R. (2d) 733 (Div. Ct.) [^2]: Aptowitzer v. Ontario (1995), 1995 854 (ON CA), 26 O.R. (3d) 254 (C.A.), para. 7 (emphasis added). [^3]: [2000] O.J. No. 3067 (Div. Ct.), para. 3. [^4]: 2013 SCC 39 [^5]: 1990 32 (SCC), [1990] 3 S.C.R. 1235 [^6]: 1998 4519 (ON CA). [^7]: Ibid., para. 13. [^8]: 2009 ONCA 548. [^9]: Ibid., para. 102. [^10]: Ibid., para. 105. [^11]: Ibid., para. 8. [^12]: Ibid., paras. 12 and 13. [^13]: 2013 ONCA 768. [^14]: (1980), 1980 1699 (ON CA), 30 O.R. (2d) 370 (C.A.).