College of Veterinarians of Ontario v. Mitelman, Samson
CITATION: College of Veterinarians of Ontario v. Mitelman, Samson, 2015 ONSC 484
DIVISIONAL COURT FILE NO.: 509/14
DATE: 20150121
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KRUZICK, SACHS AND NORDHEIMER JJ.
BETWEEN:
COLLEGE OF VETERINARIANS OF ONTARIO Respondent (Moving Party)
– and –
DR. JONATHAN MITELMAN and DR. MORRIS SAMSON Applicant, Dr. Jonathan Mitelman (Responding Party)
COUNSEL:
Bernard C. LeBlanc and Erica Richler, for the Respondent (Moving Party)
Karen E. Jolley, for the Applicant, Dr. Mitelman
HEARD at Toronto: January 21, 2015
ORAL REASONS FOR JUDGMENT
NORDHEIMER J. (ORALLY)
[1] Dr. Mitelman seeks judicial review of the decision of the College of Veterinarians of Ontario in which the College ordered that Leo Klug be removed as counsel of record for Dr. Mitelman.
[2] Two issues are raised. The first is raised by the College’s motion to quash based on the proposition that this application for judicial review is premature. The second is that, in any event, the order of the College should not be interfered with. For the following reasons, in my view, both of these issues should be resolved in favour of Dr. Mitelman.
[3] Mr. Klug has acted for Dr. Mitelman for some time. Mr. Klug had also acted for the other veterinarian involved in this matter, Dr. Samson. Mr. Klug ceased to act for Dr. Samson at Mr. Klug’s request. The reasons for that decision are, of course, unknown as any discussions between Dr. Samson and Mr. Klug in that regard are protected by solicitor/client privilege. Dr. Samson has since retained new counsel. That turn of events led to the original hearing dates being adjourned. New hearing dates have been set for April 2015, peremptory to the two veterinarians.
[4] After these events, the College – not Dr. Samson – brought a motion to remove Mr. Klug as counsel for Dr. Mitelman on the basis that there was a conflict of interest arising from his former representation of Dr. Samson. As I have said, the College granted that order. It appears that the College’s central concern was that Mr. Klug could be seen as using confidential information obtained from his representation of Dr. Samson in his representation of Dr. Mitelman.
[5] On the issue of prematurity, I acknowledge that there is a general rule that the fragmentation of proceedings is to be avoided: Haigh v. College of Denturists (Ontario), [2011] O.J. No. 1851 (Div. Ct.).
[6] That general rule is not without exceptions, however. As was observed in Ontario (Liquor Control Board) v. Lifford Wine Agencies (2005), 2005 25179 (ON CA), 76 O.R. (3d) 401 (C.A.) by Cronk J.A. at para. 43:
This general rule, however, is not absolute and should not be applied rigidly if there is a prospect of real unfairness through, for example, the denial of natural justice. In these circumstances, which will arise infrequently, the courts will intervene before completion of an administrative hearing and prior to the exhaustion of all alternative remedies. [citation omitted]
[7] In my view, the procedural ruling made in this case is one that would involve a breach of natural justice, and thus justify the intervention of this court. It is a ruling that, if it stands, will visit a real unfairness on Dr. Mitelman by depriving him of the counsel of his choice. While counsel of choice is not an absolute entitlement, it must only be interfered with for very good cause. It will be self-evident that if the hearing proceeds, and an adverse finding is made against Dr. Mitelman, and the order removing Mr. Klug is found to have been wrongfully granted, the entire proceeding will have to be redone. However, even if Dr. Mitelman does not have an adverse finding made against him, there is a very real issue whether he should be required to run that risk without having the counsel that he wishes to act for him. Consequently, very real issues of fairness are raised. I do not view this application, therefore, as being premature.
[8] In terms of the order itself, I agree with counsel for Dr. Mitelman that the College’s order is based on nothing more than sheer conjecture or, put another way, the record does not provide a foundation for a finding that there is a “realistic risk” of a conflict of interest. In particular, the record does not reveal a factual foundation for a finding that Mr. Klug ceased to continue to act for Dr. Samson because there was a conflict of interest. There are a myriad of reasons why a lawyer may find it necessary to cease to act for a client and a potential conflict of interest is but one of them.
[9] Further, the College had before it an express statement by Dr. Mitelman that his counsel would not, under any circumstances, be cross-examining Dr. Samson. It is difficult to see on what basis the College rejected that evidence. Given that sworn statement from Dr. Mitelman, it would be open to the College, should Mr. Klug actually attempt to cross-examine Dr. Samson at the hearing, to prohibit him from doing so. This is an option that the College does not seem to have considered. This fact differentiates this case from one of the cases relied upon by the College, namely, R. v. Con-Drain Co. (1983), [2008] O.J. No. 1012 (O.C.J.). In that case, the former client was going to be a Crown witness and thus cross-examination of the former client was inevitable. Unlike the situation here, the conflict that arises in that situation is clear.
[10] It is also difficult to accept the College’s position that Mr. Klug either would, or could be seen to, use confidential information obtained from Dr. Samson to his detriment when there was no evidence to support that conclusion and, more importantly, Dr. Samson was not raising any such issue. The presumption that confidential information was obtained and that it could be shared with others to the detriment of the former client largely disappears where the former client and the remaining client remain on the same side and the former client raises no such concern. This is a feature of this case that differentiates it from another authority relied upon by the College, namely, MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235.
[11] On this second issue, I should say that I do not need to decide whether the standard of review is correctness or reasonableness because even if the standard is reasonableness, the order of the College fails to meet that standard. It is not a decision on the evidence (or lack of evidence) that was before the College that falls within the range of reasonable outcomes given the importance of a person’s right to counsel of his or her choice.
[12] The application for judicial review is therefore allowed, the order of the College removing Mr. Klug as counsel for Dr. Mitelman is set aside. I should add that the Court was advised that if Mr. Klug was restored as counsel for Dr. Mitelman, the existing dates for the hearing of this matter could be maintained.
COSTS
SACHS J.
[13] I have endorsed the Application Record, “This application for judicial review is granted for reasons given orally by Nordheimer J. The order of the College removing Mr. Klug as counsel is quashed. The hearing is to proceed on the dates as scheduled. On consent, the deadline for the applicant to file defence documentation, including experts’ reports is extended to February 28, 2015. The applicant is requesting his partial indemnity costs for this hearing set in the amount of $12,000, all inclusive. As the College has acknowledged , this amount is not an unreasonable amount and is a discounted reflection of the actual time spent by applicant’s counsel preparing for this hearing. This time was considerably less than the time apparently spent by the College according to its Draft Bill of Costs. For these reasons the College shall pay the applicant his costs of this application fixed in the amount of $12,000, all inclusive.
NORDHEIMER J.
KRUZICK J.
SACHS J.
Date of Reasons for Judgment: January 21, 2015
Date of Release: January 23, 2015
CITATION: College of Veterinarians of Ontario v. Mitelman, Samson, 2015 ONSC 484
DIVISIONAL COURT FILE NO.: 509/14
DATE: 20150121
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KRUZICK, SACHS AND NORDHEIMER JJ.
BETWEEN:
COLLEGE OF VETERINARIANS OF ONTARIO Respondent (Moving Party)
– and –
DR. JONATHAN MITELMAN and DR. MORRIS SAMSON Applicant, Dr. Jonathan Mitelman (Responding Party)
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: January 21, 2015
Date of Release: January 23, 2015