Court File and Parties
Court File No.: FS-16-0188-00 Date: 2017-03-20
Ontario Superior Court of Justice
Between: Kiran Notay, Applicant
And: Baldev Bahra, Respondent
Counsel: J. Feldman, J. Dhaliwal, for the Applicant S. Mannella, for the Respondent
Heard: February 28, 2017
Reasons for Judgment
Lemay J.
[1] The parties in this case signed a separation agreement a number of years ago. Both parties are now seeking variations of that agreement. The Respondent is seeking a variation in the payment of child support, as well as a variation in the arrears as one of the children of the marriage is now living with him and has been for several years. The Applicant is seeking, inter alia, spousal support because she claims that the Respondent did not provide full and frank disclosure of his income in the previous proceeding.
[2] The Applicant has brought a motion to remove the solicitor for the Respondent from the record. In support of this motion, the Applicant argues that the Respondent’s solicitor, Mr. Salvatore Mannella, is a key witness in this case. Specifically, the Applicant alleges that Mr. Mannella is aware that the Respondent did not comply with his disclosure obligations in the original proceeding. In addition, the Applicant alleges that Mr. Mannella is the only individual who can provide “material evidence on the circumstances arising in 2007 and to the present.”
[3] The Respondent rejects these assertions, and argues that a removal order is only granted in rare circumstances. The Respondent also argues that the evidence that the Applicant is seeking from Mr. Mannella is covered by solicitor-client privilege and, in any event, is available from other sources. Finally, the Respondent argues that it is, in any event, premature to remove Mr. Mannella from the record.
[4] For the reasons that follow, I am dismissing the Applicant’s motion.
Background Facts
The Previous Settlement
[5] The parties were married on June 30, 1996, and separated on April 11, 2005. There were two children of the marriage, who are now 16 and 14 years of age.
[6] Shortly after separation, the Applicant brought a family law application, and litigation moved forward. An Order for the parties to exchange a list of financial disclosure requests was made in 2006 as part of that proceeding. Subsequently, a divorce was granted to the parties by Van Melle J. on February 9, 2007.
[7] Both parties, along with their counsel, attended at questioning on July 9, 2007. Attached to the Notice of Examination was a detailed list of productions sought from the Respondent, some of which had been sought by way of correspondence in late 2006. At the examination, rather than conducting the questioning, settlement discussions took place, and resulted in minutes of settlement between the parties. As far as I am aware, there was never any formal production Order made in the previous family law proceeding between these parties.
[8] There was no spousal support payable under the agreement between the parties. At the time that the parties reached the agreement on August 31, 2007, the children were both living with the Applicant. As part of the agreement, the Respondent agreed to pay child support.
[9] The Respondent had Mr. Mannella as his counsel throughout the proceedings, and Mr. Mannella advised the Respondent during the negotiations leading to the agreement on August 31, 2007.
[10] The separation agreement was filed for enforcement purposes with the Ontario Court of Justice.
The Litigation of This Matter
[11] In June of 2014, the eldest child of the marriage changed residences and started to live with the Respondent. As a result, the Respondent sought a reduction in the amount of child support that he was paying to the Applicant. The parties were unable to agree on any reduction.
[12] In March of 2016, the Respondent brought a Motion to Change in the Ontario Court of Justice, because the agreement had been filed for enforcement purposes in that Court. A case conference was held in that matter in July of 2016. At that time, it was undisputed that the eldest child had been living with the Respondent since June of 2014.
[13] In response to this Motion to Change and after the Case Conference in the Ontario Court of Justice, the Applicant brought a motion in the Superior Court of Justice, seeking to set aside the separation agreement on the basis that the Respondent had not disclosed his interests in various businesses. Specifically, the reasons the Applicant was seeking to have the agreement set aside were material non-disclosure, deficiencies with the disclosure and improper pressure on the Applicant by the Respondent.
[14] The pleadings in the second Superior Court of Justice proceeding were completed by mid-August of 2016. No steps were taken by the Applicant to move her case forward until an Early Case Conference was held on December 19, 2016 at the request of the Respondent. At this conference, Donohue J. ordered that the Respondent’s motion for a change in the amount of child support could proceed on January 31, 2017 and that the Applicant’s counsel was to serve a request for disclosure by December 30, 2016, with the Respondent’s reply to that request required twenty (20) days later.
[15] The request was duly served, and, on January 13, 2017, the Respondent brought his motion for a temporary order reducing the amount of child support he was required to pay to the Applicant. The basis for this motion was that the parties eldest child had been living with the Respondent since 2014. The Respondent also provided several volumes of disclosure in response to the Applicant’s request.
[16] Five days prior to this motion, on January 25, 2017, Ms. Feldman, the Applicant’s counsel, wrote to Mr. Mannella, the Respondent’s counsel and advised him that the Applicant intended to call him as a witness in this proceeding. The only basis set out in that letter for calling Mr. Mannella was that he had advised the Respondent during the previous family law litigation, and had signed an Affidavit.
The Relevant Law
[17] There are three key principles that are applicable to this case. First, and most importantly, the Courts should be very reluctant to interfere with a party’s choice of counsel. Removal motions should only be granted in the rarest of cases (see Best v. Cox 2013 ONCA 695).
[18] Second, there is the test that is to be applied by the Courts in considering a motion to remove counsel of record. That test is set out in Karas v. Ontario (2011 ONSC 5181 (Ont. Master) at paragraph 30), and is as follows:
- the stage of the proceedings;
- the likelihood that the witness will be called;
- the good faith (or otherwise) of the party making the application;
- the significance of the evidence to be led;
- the impact of removal counsel on the party’s right to be represented by counsel of choice;
- whether the trial is by judge or jury;
- the likelihood of a real conflict arising or that the evidence will be “tainted”;
- who will call the witness if, for example, there is a probability that counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising;
- the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.
[19] Finally, the Courts have removed counsel from the record when counsel will be a material witness in the proceeding.
[20] With this outline of the facts and law in mind, I can now address the removal motion.
Analysis and Disposition
[21] In essence, the Applicant advances three separate grounds for removing Mr. Mannella as counsel of record:
a) The Applicant undertakes to call Mr. Mannella as a witness at trial in this matter. b) The Applicant asserts that Mr. Mannella has knowledge of the Respondent’s alleged failure to disclose documentation in the previous action, and that he was complicit in this alleged failure to disclose. c) The Applicant asserts that Mr. Mannella should be called as a witness because he has intimate knowledge of the Applicant’s business affairs as a result of representing the Applicant, and some of the family businesses in various matters.
[22] I reject all three of these arguments for the reasons set out below.
The Undertaking to Call Mr. Mannella as a Witness
[23] While I appreciate Ms. Feldman’s undertaking to call Mr. Mannella if this matter proceeds to trial, that undertaking does not automatically entitle the Applicant to a removal order. Mr. Mannella is, and has been, the Respondent’s solicitor throughout this action. As a result, the information that he has about the Respondent’s case is privileged.
[24] A court will only permit a party’s solicitor to be called in the rarest of circumstances and only where there is a basis for calling them as a witness that is independent of the fact that they may have helpful evidence. Indeed, even in circumstances where the lawyer may have the best evidence, the Courts may not require him or her to be removed from the record or called as a witness (see Leopold v. Leopold [1999] O.J. No. 2181 (C.A.)).
[25] Of course the Respondent’s solicitor is going to know things that are helpful to the case, as he will have been briefed by his client on various aspects of the case. However, this information is all privileged.
[26] The fact that the Applicant wants to call Respondent’s counsel as a witness, and undertakes to do so, is no basis to permit the Applicant to breach that privilege and call Respondent’s counsel as a witness. To permit the calling of Respondent’s counsel merely because the Applicant wants to call him runs completely contrary to the solicitor-client privilege that is one of the key cornerstones of our judicial system. I reject the Applicant’s argument on this point.
[27] This brings me to the two types of evidence that the Applicant is seeking to adduce from the Respondent.
The Alleged Failure to Disclose
[28] The Applicant seeks to set aside the 2007 separation agreement on the basis, inter alia, that the Respondent failed to make material disclosure. Ms. Feldman, on behalf of the Applicant has asserted that Mr. Mannella has been involved in the Respondent’s failure to disclose documents. Ms. Feldman alleges that Mr. Mannella is misleading the Court and that he has no interest in telling the truth and being forthcoming.
[29] In support of this assertion, Ms. Feldman points to a number of documents. She started with a Certificate and Affidavit of Solicitor dated September 7, 2017 and sworn by Mr. Mannella, and points to the third paragraph which states:
I advised the said Baldev (Paul) Bahra with respect to the Separation Agreement and believe that he is fully aware of the nature and effect of the Separation Agreement on and in light of his present and future circumstances and is signing it voluntarily. He acknowledged and declared that it appeared to me that he was executing the Agreement of his own violation and without fear, threats, compulsion or influence by Kirandeep (Kiran) Bahra or any other person.
[30] Ms. Feldman argued that this document showed that Mr. Mannella had given advice to the Respondent about his disclosure obligations, and Mr. Mannella was therefore aware that the Respondent had not disclosed all relevant documents.
[31] Next, Ms. Feldman pointed to an e-mail from Mr. Mannella dated January 13, 2016 in which he states that the Respondent is not an officer, director or shareholder in the business owned by his brother. The corporate records seem to suggest that Mr. Bahra was, at least at some points, a director of some of the family businesses. Even if I accepted there was an error or an untruth on the part of Mr. Mannella (which is NOT a conclusion I am prepared to reach as the e-mail is ambiguous), this was a statement made in the current litigation, and not in the previous litigation.
[32] Finally, Ms. Feldman pointed to paragraph 27 of the Respondent’s February 23, 2017 Affidavit, in which he states that “Mr. Mannella produced all of the disclosure I provided to him during the [previous] proceedings.” Ms. Feldman argues that this statement suggests that Mr. Mannella knew that there might be additional relevant documents that were not disclosed. I do not read the statement the same way.
[33] However, during the course of the previous proceeding, the Applicant was advised that the Respondent was a 1/3 shareholder in Bahra Enterprises Inc., and had been since it was incorporated. This information was provided to the Applicant prior to the signing of the August 31, 2007 agreement.
[34] In addition, as part of the disclosure response in this proceeding, the Respondent was prepared to permit the inspection of the minute book and other corporate records for Bahra Enterprises Inc. I saw no indication that the Applicant’s counsel inspected these records prior to this motion being brought.
[35] This brings me to the various factors that are to be considered on a removal motion. On those factors, I note as follows:
a) The stage of the proceedings - the Respondent is quite right that this motion is being brought at a preliminary stage in this proceeding, which supports the view that this motion is not yet necessary. b) The likelihood that the witness will be called - I view it as very unlikely, at this stage, that the trial judge would permit Mr. Mannella to be called as a witness in this case for two reasons: the fact that there is solicitor-client privilege that would cover his testimony; and the fact that the Applicant can seek these documents through other means, such as a third party records application. c) The good faith (or otherwise) of the party making the application - while I am not prepared to find bad faith on the part of the Applicant, I am concerned about both the timing and the intent of this motion. With respect to the timing, I note that this motion was brought two days before the Respondent’s motion for an interim adjustment to child support was to be heard, and several months after this litigation started. I was not given a clear explanation for this delay. In terms of the intent, removal of counsel of record is a serious step, and should only be considered after other options have been explored. d) The significance of the evidence to be led - again, as noted above, this evidence all appears to be available through a third party records application. As a result, at this stage it appears that any evidence to be led through Mr. Mannella would be redundant. e) The impact of removal of counsel and the likelihood of a real conflict arising - on the record before me, I do not see a conflict arising between Mr. Mannella and the Respondent in this case. As a result, the impact on the Respondent of removing Mr. Mannella as counsel of record would be significant. f) Given my conclusions about the likelihood of Mr. Mannella being called as a witness in this case, and the lack of any obvious conflict between himself and the Respondent, the remainder of the factors do not favour removing Mr. Mannella as counsel.
[36] I would be remiss if I did not also observe that I saw nothing in the record that would support Ms. Feldman’s claim that Mr. Mannella was misleading the Court or that he has no interest in telling the truth. These types of allegations are serious, and should only be made when there is a factual basis to support them.
Mr. Mannella’s Involvement with the Family Businesses
[37] Ms. Feldman argues that Mr. Mannella has acted for the family businesses and, as a result, has knowledge of the structure of those businesses including who obtains income from these businesses. Therefore, Ms. Feldman asserts, that she should be permitted to call Mr. Mannella and adduce evidence of the corporate structure through him.
[38] This argument suffers from three flaws, each of which would be fatal to it. First, the mere fact that Mr. Mannella acted for the businesses before the Court of Appeal does not mean that he is intimately familiar with their corporate structure. In other words, there is no evidentiary basis before me to establish that Mr. Mannella has any knowledge of the corporate structure. This is particularly true when the case in the Court of Appeal concerned a claim for nuisance.
[39] Second, even if Mr. Mannella knew the facts that the Applicant wishes to adduce from him, that knowledge would still be privileged information and Mr. Mannella would not be required to share it with the Applicant or the Court.
[40] Finally, if the Applicant wishes to obtain information about the businesses owned by the Respondent’s brother, it is open to her to bring a motion for production from a third party. I note that, although the Applicant started this case more than six months ago, she has not taken any steps to obtain production from the various companies that she alleges pay the Respondent.
[41] Given that there is a strong possibility that the evidence the Applicant seeks is, if it exists, in the possession of the third party companies, it is not reasonable to seek production of that evidence by calling the Respondent’s counsel as a witness. Instead, the appropriate way to address the allegedly missing documents is for the Applicant to bring a motion to seek those documents from a third party.
[42] In any event, I reject the Applicant’s claim that Mr. Mannella’s involvement in representing the family business make him a compellable witness at this stage of the proceedings. I also reject the argument that his alleged knowledge creates a conflict of interest.
[43] As a result, the Applicant’s motion is dismissed.
Disposition
[44] The Applicant’s motion is dismissed. In the event that circumstances change, the Applicant may renew this motion.
[45] The Respondent will provide his costs submissions within fourteen (14) days of the receipt of this decision. Those costs submissions are not to exceed two (2) single spaced pages, exclusive of case-law and bills of costs.
[46] The Applicant will provide her costs submissions within fourteen (14) days of the receipt of the Respondent’s submissions. Those costs submissions are not to exceed two (2) single spaced pages, exclusive of case-law and bills of costs.
[47] There shall be no reply submissions on costs without my leave.