Neutral Citation: 2002 ONFSCDRS 198

FSCO A–008445 and A–008446

BETWEEN:

ABA M. ALAMIN

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

and

THE TTC (MARKEL INSURANCE COMPANY OF CANADA)

Insurers

DECISION ON A MOTION TO WITHDRAW AS SOLICITOR OF RECORD

Ms. Moira Gracey and the Carranza Law Firm,

Moving Parties

Ms. Aba Alamin, The Royal & Sun Alliance Insurance Company of Canada and the TTC

Respondents

Before: John Wilson

Heard: October 15, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Ms. Alamin appeared on her own behalf, assisted by Mr. Shakari, a community advisor. Juan Carranza for Moira Gracey Nestor E. Kostyniuk for Royal & SunAlliance Insurance Company Leonard Wilgus For The TTC

Issues:

The Applicant, Aba M. Alamin, claimed to have been injured in motor vehicle accidents on March 21, 1993 and September 14, 1993. She applied for statutory accident benefits from both Markel Insurance Company of Canada (the "TTC") and Royal & Sun Alliance Insurance Company of Canada ("Royal"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Alamin applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The arbitration hearing was adjourned at various times due to changes of representation, the unavailability of the Applicant due to her involvement in other legal processes, and concerns over the capacity of the Applicant to proceed with this arbitration.

The ongoing difficulties in getting this case to the hearing stage arise principally from the latter reason.

An arbitration hearing was scheduled for Monday, April 8, 2002 in the above matters. Prior to the hearing, Ms. Gracey, counsel of record for Ms. Alamin, advised the Commission that she would seek an order removing herself as counsel of record for Ms. Alamin. Mr. Wilgus also advised that the TTC would be seeking an adjournment due to the delays in the production of certain documents.

Counsel for all parties attended for the hearing. Ms. Alamin attended, accompanied by Mr. Shakari, a community advisor, who was present to assist Ms. Alamin in presenting her argument on the representation issue.

At the scheduled start of the hearing, Ms. Gracey repeated her request to be removed as counsel of record.

Ms. Gracey submitted that the solicitor-client relationship had broken down, and that she should be released from her obligations as solicitor of record.

Ms. Alamin resisted this request, claiming significant prejudice if the matter was not to proceed to a hearing relatively soon, with her current counsel.

At the hearing on April 8, 2002, I found:

Given the previous allegations of incapacity in this matter, I am not inclined to grant the requested order at this time, without some credible evidence that the alleged breakdown in the solicitor-client relationship is not due to, or related to the capacity issues, previously identified, and that the prejudice asserted by Ms. Alamin can be addressed.

At a further resumption of the hearing on September 13, 2002, I further found:

The Carranza firm's failure to act on its undertakings has meant that the case has stalled. No hearing has taken place, even though the incidents took place almost a decade ago. Under the circumstances, I accept that Mrs. Alamin felt prejudiced by the attempt to abandon her on the eve of the arbitration hearing. I also accept that there may have been prejudice to the Insurers in this matter, who have been unable to close their files once and for all.

Faced with the ongoing ambiguity on the question of capacity, Ms. Gracey's failure to abide by her undertaking to produce medical evidence, and the rushed manner in which this motion was brought forward, with short notice to all parties, I decline to exercise my discretion to release the Carranza law firm and Ms. Gracey as solicitor of record.

The hearing was adjourned to October 15, 2002, to permit Ms. Gracey to obtain evidence in support of her motion to be removed as solicitor of record.

Mr. Carranza, representing Ms. Gracey, called Dr. Panjwani, Ms. Alamin's psychiatrist, to testify concerning her capacity to instruct counsel in this matter.

During questioning of Dr. Panjwani, he answered clearly and unequivocally that, in his opinion, Ms. Alamin met the criteria for capacity outlined in section 6 of the Substitute Decisions Act, 1992, S.O. 1992, c.30, ("S.D.A.").

Section 6 of the S.D.A. provides:

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Although Ms. Alamin had some problems in dealing with decisions, in his opinion, she clearly exhibited the capacity to understand the relevant information and analyse the elements of such decisions, as well as the ability to foresee consequences of her actions.

Mr. Justice Quinn of the Ontario Court (General Division) in Re Koch (1997 CanLII 12138 (ON CTGD), 33 O.R. (3d) 485) outlined the effect of section 6 of the S.D.A.:

Compelling evidence is required to override the presumption of capacity found in s. 2(2) of the SDA (Substitute Decisions Act) and s. 4(1) of the HCCA (Health Care Consent Act). The nature and degree of the alleged capacity must be demonstrated to be sufficient to warrant depriving the appellant of her right to live as she chooses. Notwithstanding the presence of some degree of impairment, the question to be asked is whether the appellant has retained sufficient capacity to satisfy the statutes.

Although Ms. Alamin remained mute at the hearing into this matter, and spoke only through her community representative, Mr. Shakari, Dr. Panjwani was clear that, in his opinion, she, notwithstanding some impairment, in Quinn J.'s words, "retained sufficient capacity to satisfy the statutes."

Although Ms. Alamin's difficulties in dealing with the legal system and this arbitration may not stem directly from incapacity as defined in the S.D.A., the record shows that, at times, her understanding and appreciation of the process may have been limited.

In Limbani (Litigation guardian of) v. Limbani [1999] O.J. No. 1228, Murphy J. dealt with the question of whether social and cultural difficulties could result in disability for the purposes of the S.D.A.

The plaintiffs argued that:

disability should be given the expanded meaning that disability is more than a mental condition. Disability should include a consideration of the educational training and background, cultural experiences, as well as the lack of life experiences. Pushpa is a woman who, because of those factors – education, training, cultural experience and life experiences – is not capable of managing her own affairs.

Murphy J. rejected any suggestion that a wider view of incapacity could be relied upon, and concluded that someone who is "quite healthy mentally, she is stable mentally" would meet the test for capacity contained in ss. 6 and 45 of the SDA.

Notwithstanding the difficulties Ms. Alamin has had over time with mental health issues, and with instructing counsel, it is clear from the evidence of her treating psychiatrist that she, at present, possesses the necessary capacity to make decisions, and to instruct counsel, and I so find.

I find, as well, that any current difficulties in the solicitor-client relationship between Ms. Gracey of the Carranza firm and Ms. Alamin are more likely attributable to differences in the background, cultural and life experiences of Ms. Alamin, than to any current intellectual incapacity on the part of Ms. Alamin.

It is then Ms. Alamin's competent request that the Carranza law firm remain as her solicitors of record. The Carranza firm, which has been solicitor of record for Ms. Alamin, wishes to be removed as solicitor of record, citing a breakdown in the solicitor-client relationship.

Ms. Alamin has acknowledged difficulties in her dealings with her solicitors, but has requested that they be ordered to remain as solicitors of record since she would be greatly prejudiced by their removal from her case at this time. In the context of Ms. Alamin's suggestion of prejudice, it should be noted that the Carranza firm has been involved in her case at least since 1998.

As noted in the prior interim decisions on this matter, the Dispute Resolution Practice Code (4th Edition, May 31, 2001) (the "Practice Code") outlines the process for the withdrawal of a representative.

Rule 9.8 provides:

Where the party represented provides written consent to the representative's request for withdrawal, the Registrar or an adjudicator shall permit the representative's withdrawal. Otherwise, an adjudicator may permit the representative to withdraw, subject to such terms as the adjudicator considers just.

Ms. Alamin refuses to consent to the withdrawal of the Carranza law firm. Pursuant to Rule 9.8, then, the arbitrator may "permit the representative to withdraw, subject to such terms as the adjudicator considers just.'

There is no jurisprudence as to the actual effect of Rule 9.8 at the Commission. Although the use of may implies a discretion on the part of an adjudicator to refuse a withdrawal, the courts of some jurisdictions have found that such a power is both non-existent and undesirable.

In R. v. Leask [1985] B.C.J. No. 2908, the British Columbia Supreme Court was asked for an order prohibiting a provincial court judge from ordering a lawyer to continue as counsel in a criminal matter. McKay, J. in his decision stated unequivocally:

The issue is whether a trial judge has any right in law to order counsel to continue in the defence of an accused after counsel advises that he has decided that he will no longer represent the accused. In my view the law is clear that he cannot make such an order. I had never heard it suggested otherwise until I read the remarks of Judge Cronin. A judge can, of course, urge counsel to reconsider and to try to reconcile any differences with his client – but if counsel stands firm then he cannot be prevented from withdrawing. It follows that counsel cannot properly be cited for contempt for refusing to comply with that unlawful order.

In R. v. Zukerman [1992] O.J. No. 2303, MacDonnell Prov. Div. J. examined the approach taken in Leask and other cases:

Mr. Gans also made reference to the decision of the Quebec Court of Appeal in R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149. In that case, counsel for an accused charged with murder applied at the outset of trial for leave to withdraw on the basis that he had been discharged by his client. The trial judge allowed him to withdraw as counsel, but ordered him to remain to "assist" the accused during the trial. The Court of Appeal held that the trial judge erred in making that order. The facts of R. v. Steele were quite unlike those of the present application, but one comment made by Fish J.A., speaking for the Court of Appeal, is directly relevant to this case. He stated at p. 160:

Permission to withdraw at the outset or in the course of a trial is not lightly granted by the courts. Withdrawal will normally be permitted only where counsel and client are irreconcilable. So fundamental is the disagreement, that counsel is presumed incapable of properly representing the accused.

Unlike McKay J. in Re Cronin and Leask, the Quebec Court of Appeal considered that a trial judge has a role to play in determining whether counsel should be permitted to withdraw at the outset or in the midst of a trial. The authorities in Ontario are consonant with that dictum of, the Quebec Court of Appeal and inconsistent with the opinion expressed by McKay J. in Re Cronin and Leask.

More recently, Hill J. in R. v. Downey [2002] O.J. No. 1524, while accepting elements of Leask, summarized the law in Ontario on the removal of counsel as follows:

A client can discharge counsel at any time and defend him or herself; Spataro v. The Queen (1972) 1972 CanLII 25 (SCC), 7 C.C.C. (2d) 1 (S.C.C.) at 4 per Judson J.: Regina v. Dunbar and Logan (1982), 1982 CanLII 3324 (ON CA), 68 C.C.C. (2d) 13 (Ont. C.A.) at 47 per Martin J.A.; Sherman et al. v. Manley et al (1978) 1978 CanLII 1279 (ON CA), 19 O.R. (2d) 531 (C.A.) at 535-6 per Houlden J.A. A lawyer, once retained, does not enjoy the same freedom of action: Canadian Bar Association: Code of Professional Conduct (1999). ch. XII: Withdrawal-Commentary, para. 1, 3.

The court entertains supervisory jurisdiction, apart from rules of court, as an aspect of its inherent jurisdiction to control its own process and to deal with officers of the court in matters affecting the administration. Counsel appearing before the court owes duties to the court quite apart from any duty owed to a client or the profession or the public: Regina v. C (D.D.) (1996), 1996 ABCA 303, 110 C.C.C. (3d) 323 (Alta. C.A.) at 326 per curiam (leave to appeal refused [1996] S.C.C.A. No. 453 [1997] 1 S.C.R. vii)

A counsel, independent of his obligations to others including the client, having been retained in a criminal case, and having appeared before the court, is obligated to the court to continue to do so unless, after notice to the client, the court permits counsel to withdraw for cause or by reason of the client's termination of the relationship: Rules 2.09(2) and 2.09(7) of the Rules of Professional Conduct of the Law Society of Upper Canada; Rule 25 of the Rules Respecting Criminal Proceedings in the Superior Court of Justice; Regina v. C (D.D.) supra at 327-8. In other words there is no absolute right to withdraw: Regina v. Jenkins [2001] O.J. No. 760 (S.C.J.) at para. 14 per Abbey J.

While the courts in Ontario in criminal matters may have a clear supervisory jurisdiction sufficient to order counsel to remain counsel of record for a party, I am not convinced that Rule 9.8 of the Practice Code confers equivalent power on arbitrators.

In civil matters, as opposed to criminal matters, Rule 2.09 of the Rules of Professional Conduct of the Law Society of Upper Canada makes it clear that a lawyer may withdraw from representing a client for just cause. The rules include as justifiable cause a loss of confidence, deception by the client, the failure to pay fees, or the refusal of a client to accept and act upon the lawyer's advice on a significant point.

The Commentary on Rule 2.09 states:

No hard and fast rules can be laid down about what will constitute reasonable notice before withdrawal. Where the matter is covered by statutory provisions or rules of court, these will govern. In other situations, the governing principle is that the lawyer should protect the client's interests to the best of the lawyer's ability and should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril.

While the Commission, unlike the courts, has no mandate to enforce the professional obligations of lawyers in general, the Rules of Professional Conduct provide a reasonable expectation of the standards of performance for lawyers appearing before the tribunal and, consequently, some guidance in interpreting Rule 9.8 of the Practice Code, in the context of a withdrawal by a lawyer.

It is clear that arbitrators at the Commission may only exercise those powers granted directly by statute or impliedly necessary for the exercise of the Commission's statutory mandate. I have been directed to no statutory authority permitting me to order that a solicitor-client relationship be continued.

The Practice Code itself is neither legislation nor regulation. It is merely a bundle of procedural rules promulgated pursuant to the Insurance Act and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, (the "S.P.P.A."). As such, it can grant no substantive powers not found in either the S.P.P.A or the Insurance Act.

I find that the specific power to order a solicitor to represent a party against his or her will would be the exercise of a substantive power and would be in the absence of direct legislative authority beyond the authority of an arbitrator.

Rule 9.8 of the Practice Code, read as a whole, implies that a solicitor may withdraw from a case, either with or without the approval of his or her client. In such an interpretation the permissive may, relates to the ability of an arbitrator to make the withdrawal subject to such terms that he or she deems to be just.

Such an interpretation can be seen as laying out procedural guidelines for the withdrawal of a solicitor or representative, and being within the jurisdiction of an arbitrator. It can also be a valid exercise of a power pursuant to subsection 23(1) of the S.P.P.A. to make "such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes."

Ms. Gracey has provided an affidavit stating that the solicitor-client relationship between her and Ms. Alamin has broken down irrevocably. Her evidence is uncontradicted.

I accept that Ms. Gracey sincerely believes that there has been a loss of confidence between her and Ms. Alamin. Ms. Alamin has not denied that such is the state of the solicitor-client relationship. I note, however, that it is the Carranza law firm and not Ms. Gracey who is the solicitor of record in this matter.

Although a person will remain as counsel of record until such time as he or she obtains the consent of his or her principal, or makes a motion to withdraw without consent, once the request has been made, acceptance of the withdrawal is automatic, subject to any just orders or conditions.

I find that, given the general law on the solicitor-client relationship, the Rules of Professional Conduct of the Law Society of Upper Canada, and the wording of Rule 9.8 of the Practice Code, I have no option but to grant the request by the Carranza law firm for withdrawal as solicitor of record, subject to any terms or conditions that I may consider to be just, in the circumstances.

The use of just in conjunction with terms makes it clear that any terms or conditions to be placed upon withdrawal are meant to mitigate any prejudice that may happen as a result of the withdrawal.

Black's Law Dictionary defines just as:

Conforming to or consonant with what is legal or lawful: legally right; lawful. Correct, true, due. Equitable. Reasonable. Right; in accordance with law and justice. See also Equitable. [Citations omitted]

In deciding whether terms for withdrawal are either necessary or appropriate, an arbitrator, like a judge, "requires justifiable cause for withdrawal and will pay heed to the point in the proceedings when the application is made and the prejudice likely to result to the client if leave is granted." (R. v. Downey, supra)

Consequently, an arbitrator may take notice of any prejudice to a client caused by the precipitate withdrawal of counsel, and attempt to mitigate any such prejudice by placing fair conditions on the withdrawal.

It is important to examine just what the prejudice might be, before considering whether conditions may be placed on the withdrawal to deal with such prejudice.

Although Ms. Alamin and her community advisor did not specifically articulate it as such, it is clear that Ms. Alamin views the potential of further delay as a serious potential prejudice.

Indeed, the delay in this matter has been exceptional. While the stated aims of arbitration include providing a process that is "quicker, less expensive and less formal" (Introduction to the Dispute Resolution Practice Code), Ms. Alamin's arbitration has been anything but quick. Indeed, this matter was mediated in 1994, and gradually proceeded to a hearing.

As I noted in a letter decision in April of 2002,

These two matters date from 1993, almost a decade ago. In the interim, at least two arbitrators have attempted to hear this matter, each adjourning due to concerns about the capacity of the Applicant to proceed. The record, indeed contains assertions, both of capacity and incapacity by various sources, including physicians and psychiatrists.

The arbitration hearing in this matter was adjourned due to serious concerns by her then counsel about Ms. Alamin's capacity and her ability to instruct counsel. Indeed, when the Carranza firm most recently became solicitors of record in this matter, some four years ago, the issue of capacity was front and centre.

This is evident from a letter written in 1999 to the Carranza firm from Arbitrator McMahon, who was then attempting to hear the matter.

When we last met, you had undertaken to apply to the court for the appointment of a litigation guardian. The time frame within which you were to report back has come and gone. Could you please update me on the progress of this matter.

It is clear that this undertaking was never fulfilled, notwithstanding the obvious consequence that the arbitration would not proceed without the appointment of a litigation guardian.

I note that although I have made a finding that Ms. Alamin, at present, does not require a litigation guardian to proceed, I am satisfied from the record, that the undertaking to appoint a litigation guardian was an appropriate step to take at the time, and find that the matter could not have proceeded, at that time, without such an appointment.

It would appear, from the record, that the Carranza firm continued to be less than diligent in pursuing this matter on behalf of Ms. Alamin, or in communicating with her. On March 7, 2001, a case administrator at the Commission felt obliged to write to them:

We wrote to you on April 15, July 26 and August 19, 1999 (copies of letters enclosed) regarding the above matter. We have not heard since then from Mr. Tiano or any one else regarding the above matter. We have on several occasions called to find out who is representing her since Mr. Tiano left your organization. We are now writing to find out if your firm is still representing Mrs. Alamin, as she has recently called us to enquire about the status of her file.

In my interim decision on this motion, I made the following finding:

I find that the undertaking by the Carranza law firm to obtain the appointment of a litigation guardian is still outstanding.

I am advised, as well, by counsel for the Insurers that certain document production obligations entered into by counsel for Ms. Alamin may, as well, be outstanding.

From the record it is clear that Ms. Alamin has had some difficulty retaining counsel. Given that almost a decade has elapsed since the events giving rise to this arbitration, the difficulties in presenting Ms. Alamin's case have, if anything, been substantially augmented.

Given the Carranza firm’s apparent attitude to outstanding undertakings and production requests, I very much doubt that Ms. Alamin's file was complete and ready to proceed to arbitration in April of this year, as it should have been.

Ms. Alamin does not appear to have any confidence in being able to retain and instruct counsel before the hearing, now scheduled for a date in 2003.

Given the complexity of these two accident claims, the difficulty of arranging evidence a decade after the fact, and Ms. Alamin’s demonstrated difficulties with the legal process, I accept, as well, that Ms. Alamin cannot reasonably be expected to present this matter in an effective manner without skilled assistance.

It is important to note that Mr. Shakari, her community representative, is a volunteer whose main purpose seems to be to give moral support to Ms. Alamin, and does not profess any legal expertise. Neither has he expressed a willingness to represent Ms. Alamin in the ongoing arbitration.

I accept that Ms. Alamin has likely suffered some significant prejudice due to the delay in this file to date. I accept as well that it would be a reasonable assumption that even more prejudice will result from the release of her solicitors, since I find it unlikely that she will be able to retain and instruct competent counsel prior to the new hearing date which is peremptory to Ms. Alamin.

Therefore, while I am content to order that the Carranza law firm be removed as solicitor of record, I make such an order subject to the following conditions:

The Carranza law firm shall ensure that its documentary production obligations in this matter have been completed, subject to the co-operation of Ms. Alamin in providing any necessary authorizations.
The Carranza law firm shall make a duly qualified barrister and solicitor, familiar with the file, other than Ms. Gracey, available to appear as amicus curiae at any resumed pre-hearings and at the hearing in this matter, which is now scheduled for the spring of 2003. I note that there is no funding ordered for these appearances.
The Carranza law firm shall provide Ms. Alamin with a full copy of her file, and any supporting documents in its possession, together with a summary of the actions completed on this file and those remaining to be undertaken prior to a hearing.
Should Ms. Alamin be successful in retaining other counsel, or should the Carranza law firm conclude other arrangements with Ms. Alamin, it may move to be released from its obligations under this order.
The two matters shall continue to be heard together, but not combined into a single file.
The Carranza law firm shall continue to be served with all notices of hearing with regard to these matters, until such time as it is relieved of its obligations

I make this rather unusual order as a means of reconciling two distinct and competing imperatives. I note that, although a similar order was impugned by the Quebec Court of Appeal in R. c. Steele 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149, the Quebec case involved a situation in which the defendant actually fired his counsel, only to have the court order the counsel to appear on his behalf. Fish J. A. in Steel (supra) specifically relied upon the comments of the court in R. c. Poulin (C.A.Q. 200-10-000220-884, which viewed such an order as a violation of the constitutional rights of an accused. The court in Poulin stated:

La décision du juge a eu pour effet d'imposer à l'appelant un avocat qu'il avait désavoué. Elle a eu pour effet aussi d'obliger l'avocat à agir contre son gré, sachant qu'il avait des motifs raisonnables de se retirer.

(The decision of the judge had the effect of imposing counsel on the appellant that he had rejected. It had the effect as well of compelling a lawyer to act against his own inclinations, knowing that he had good reasons for withdrawal.)

In this matter, Ms. Alamin wants the Carranza firm to continue to represent her. I find that by appearing as amicus curiae, the Carranza law firm may both address the prejudice caused by past delays and Ms. Gracey’s attempted withdrawal on the eve of a hearing, while avoiding the ethical dilemmas posed by a loss of confidence in the solicitor-client relationship.

EXPENSES:

Having warned the moving parties of a possible expense order arising from their failure to bring on this matter promptly, and for their failure to produce the medical reports as undertaken, resulting in further delay, I exercise my discretion, pursuant to Rule 75.1 of the Practice Code, to award the respondents their fixed expenses thrown away at the hearing adjourned on September 13 of this year.

I fix those expenses at $200 for each of the Insurers. Ms. Alamin did not retain counsel, but would have had to incur expenses on behalf of herself and Mr. Shakari who acted as her agent on this motion. I fix those expenses at $50. All of these expenses are payable forthwith.

December 13, 2002

John Wilson Arbitrator

Date