COURT FILE NOS.: CV-14-515312 & CV-14-497475 DATE: 2020 08 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MANOUCHER BARADARAN, Plaintiff
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SHAHEN A. ALEXANIAN, SHAHEN A. ALEXANIAN LAW FIRM and SHAHEN ALEXANIAN PROFESSIONAL CORPORATION, Defendants
AND RE: MANOUCHER BARADARAN, FARIBA BARADARAN, SABA BARADARAN by her litigation guardian, MANOUCHER BARADARAN, and SAMA BARADARAN by her litigation guardian, MANOUCHER BARADARAN, Plaintiffs
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THOMAS COOK TRAVEL INC. operating as SEARS TRAVEL SERVICE and TRANSAT TOURS CANADA INC., Defendants
BEFORE: Master Todd Robinson
ATTENDING: K. Wise and Z. Wise (student-at-law), counsel for Manoucher Baradaran M. Baradaran, for himself
HEARD: July 30, 2020 (via teleconference)
REASONS FOR DECISION
[1] Kenneth Wise, lawyer for Manoucher Baradaran as plaintiff in Court File No. CV-14-515312 and lawyer for Mr. Baradaran and his family as plaintiffs in Court File No. CV-14-497475, moves for orders removing him as the lawyer of record under Rule 15.04 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). These two motions were scheduled to be heard concurrently with removal motions in two lien actions in which Mr. Wise also represents Mr. Baradaran, but those two motions did not proceed as a result of an agreement reached for Mr. Wise to continue acting in those lien actions.
[2] The defendants in both of the subject actions did not attend the hearing and took no position on the motions. Mr. Baradaran attended the hearing to oppose his lawyer’s request for removal and asked the court to require that Mr. Wise remain on the record in both actions. Fariba Baradaran, who is Mr. Baradaran’s spouse and a plaintiff in Court File No. CV-14-497475, did not attend. Mr. Baradaran is the litigation guardian of the other two plaintiffs in that action, who are his children. After hearing submissions from each of Mr. Wise and Mr. Baradaran, I confirmed that I would be granting the removal orders with reasons to follow.
[3] After confirming that disposition, but before the draft orders were addressed, Mr. Baradaran took the position that his spouse had not been properly served and that no order could be made regarding removal of Mr. Wise until she had been properly served and afforded an opportunity to respond to the motion. I had raised the issue of proper service on Ms. Baradaran at the outset of the hearing. Although email service had been authorized in my endorsement dated June 11, 2020, no email address for Fariba Baradaran had been provided and Ms. Baradaran had not been directly emailed or otherwise served with a copy of the motion materials. In response to my query at the outset of the hearing, I had understood Mr. Baradaran to confirm she was aware of the motion and would not be participating. After my disposition, he stated otherwise.
[4] Given the concerns expressed by Mr. Baradaran, I determined that it was appropriate to vary my oral disposition and adjourn the portion of the motion in Court File No. CV-14-497475 relating to Ms. Baradaran, so that she could be properly served and afforded an opportunity to make her own submissions, if any. However, having already heard Mr. Baradaran’s extensive submissions and being satisfied that Mr. Wise should not be required to continue to act, I granted the removal orders other than in respect of Mr. Wise’s representation of Fariba Baradaran. These are my reasons for that disposition.
Relevant Law
[5] In Konstan v. Berkovits, 2019 ONSC 3063, Myers J. reviewed the principles applicable on a motion to remove counsel from the record. In doing so, Myers J. cited with approval the decision of Todd Family Holdings Inc. v Gardiner, 2015 ONSC 6590, in which McIsaac J. expressed his view that the Supreme Court of Canada’s list of factors to be considered in a removal motion as outlined in R. v. Cunningham, 2010 SCC 10 at para. 50 also apply in the civil context. In my view, the Supreme Court of Canada’s discussion of withdrawal in R. v. Cunningham at paras. 47-50 is both helpful and instructive to determining a removal motion under Rule 15.04 of the Rules that is opposed by a responding client.
[6] Distilling both Myers J.’s analysis (which adopts elements of McIsaac J.’s analysis) and the considerations identified by the Supreme Court of Canada in R. v. Cunningham, the following principles apply in the court’s assessment of a removal motion that is opposed by the client:
(a) The principles governing exercise of the court’s discretion to allow or refuse withdrawal “transcend the simple canons of contractual interpretation”.
(b) In deciding whether to allow a lawyer to be removed from the record under Rule 15.04 of the Rules, the court’s discretion is informed by the Rules of Professional Conduct. However, the court is not acting as the Law Society of Ontario (the “LSO”). Whether the Rules of Professional Conduct were violated or are being violated is a question for the LSO itself.
(c) The Rules of Professional Conduct require that a lawyer have “good cause” or “justifiable cause” to terminate a relationship, which must also consider and balance the amount of notice available to ensure that the clients are not left with too little time to find alternate counsel: see Rule 3.7-1 of the Rules of Professional Conduct and the related commentary.
(d) Withdrawal may be sought for an ethical reason, meaning that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue to act for the client. This includes circumstances such as instructions to act in violation of the lawyer’s professional obligations or a client’s refusal to accept the lawyer’s advice on an important trial issue. Generally, the court will grant removal in such circumstances, since counsel may be required to withdraw in order to comply with her or his professional obligations. It would be inappropriate for the court to require counsel to continue to act when to do so would put her or him in violation of professional responsibilities.
(e) Withdrawal may also be sought for non-payment of legal fees or another non-ethical reason. In these circumstances, the court may exercise its discretion to refuse counsel’s request having regard to the following non-exhaustive list of factors:
(i) whether it is feasible for the client to represent herself or himself in the litigation, having regard to considerations such as the particular circumstances of the client and the complexity of the proceeding;
(ii) other means of the client obtaining representation;
(iii) conduct of counsel, such as whether counsel gave reasonable notice to the client to allow the her/him to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
(iv) impact on the client from delay in the proceedings;
(v) impact on the other parties in the proceeding and, if applicable, witnesses and jurors, including consideration of the expected length and complexity of the proceeding; and
(vi) the history of the proceeding, including whether the client has changed lawyers repeatedly.
(f) One of the court’s principal concerns on a removal motion brought by counsel under Rule 15.04 is ensuring that the client is able to obtain new counsel without being prejudiced beyond the loss of historical knowledge that is necessarily incidental to a change of counsel. Prejudice to a client from a withdrawal is thereby always a significant factor to be considered. Serious prejudice militates strongly against permitting withdrawal, consistent with Rule 3.7-3 of the Rules of Professional Conduct, which expressly provides that a lawyer is not permitted to withdraw if serious prejudice would result to the client.
(g) The court is also concerned with ensuring that granting a removal order does not cause serious harm to the administration of justice.
(h) The court is not strictly bound by the terms of the parties’ contractual arrangements. Granting or refusing a removal motion has no bearing or effect on a claim for breach of contract or for compensation that the client (or the lawyer) may choose to bring.
Analysis
[7] Mr. Wise provided the court with unredacted motion records for each motion in accordance with Rule 15.04(1.3) of the Rules. Those motions records disclose certain solicitor-client privileged information regarding the relationship between Mr. Wise and Mr. Baradaran for each action. That evidence was tendered in support of Mr. Wise’s submission that there has been a breakdown in the solicitor-client relationship.
[8] As noted above, Mr. Baradaran filed no responding materials. However, after excusing other counsel from the hearing, with only Mr. Wise, his student-at-law, and Mr. Baradaran remaining, I heard extensive submissions from Mr. Baradaran regarding the solicitor-client relationship. Without disclosing the details of those submissions, which included privileged and confidential information, it is sufficient for me to note that, in general, Mr. Baradaran’s submissions included allegations of breaches of the terms of the retainer agreement as understood by Mr. Baradaran, breaches of Mr. Wise’s duties to his clients, and conduct by Mr. Wise that Mr. Baradaran feels may warrant raising with the LSO.
[9] In the absence of any evidence filed by Mr. Baradaran, I am in no position to make any determination on the legitimacy of his allegations. However, to properly dispose of these motions, I need not do so. Mr. Baradaran’s submissions were more than sufficient to demonstrate that there has indeed been an irreparable breakdown in the solicitor-client relationship, even greater than the breakdown outlined in Mr. Wise’s motion materials. Requiring Mr. Wise to continue to act for Mr. Baradaran in these circumstances is not only unfair to Mr. Wise, but in my view is also unfair to Mr. Baradaran. For reasons regarding which I need not make any determination, Mr. Baradaran has evidently lost confidence in his lawyer’s ability to fairly advocate the plaintiffs’ interests in these two actions.
[10] Even absent the ethical issues implicated by Mr. Baradaran’s submissions, I would have granted Mr. Wise’s motions based on the factors outlined above. Without going through each of them in detail, I note the following:
(a) In my view, having considered the issues in dispute in both actions, they are each matters in which it is feasible that Mr. Baradaran could represent himself and, in the case of Court File No. CV-14-497475, his children as their litigation guardian. They are also both matters for which Mr. Baradaran could locate capable alternate counsel;
(b) There is no evidence before me to support that Mr. Wise did not give Mr. Baradaran appropriate or reasonable notice to allow him to seek other means of representation. Notably, the case teleconference at which these motions were scheduled was seven weeks prior to the motion hearing;
(c) There could be impact to Mr. Baradaran from delay in the proceeding, although it is not clear that such impact is insurmountable. For example, while the action in Court File No. CV-14-515312 appears to have been administratively dismissed in December 2019, an unsuccessful mediation in that action also occurred in December 2019, suggesting that the litigation was being actively advanced shortly before the dismissal. Mr. Baradaran will also not be without other recourse if he has been prejudiced from procedural delay that is found attributable to Mr. Wise. I accordingly do not view this factor as strongly militating against granting removal in all the circumstances; and
(d) Neither action has been set down for trial. It appears that the action in Court File No. CV-14-497475 is still at the discovery stage. In my view, there will be no serious impact to other parties in either action if a removal order is granted.
[11] In Konstan v. Berkovits, supra at para.15, Myers J. observed as follows:
I cannot accept that there is no other capable counsel willing to take on these cases at a fair price. I can take judicial notice of the fact that there are approximately 50,000 lawyers licensed by the Law Society of Ontario. It is a competitive and price-sensitive marketplace. Mr. Shiller may be one of few with his precise qualities. But I do not accept (and there is no industry evidence to support an assertion that) there are not many other lawyers available in Toronto and environs with similar professional experience who may offer similar pricing terms.
[12] The same is true for these cases. While unfortunate that the solicitor-client relationship has broken down, there is time for new counsel to be retained, if Mr. Baradaran so desires, so that his interests and the interests of his children in Court File No. CV-14-497475 are properly represented in both actions. I see no reason why Mr. Baradaran cannot obtain alternate counsel at a fair price, with an appropriate balance between cost and experience that is acceptable to him.
[13] In the circumstances of these two actions, while there is naturally some prejudice to Mr. Baradaran from Mr. Wise’s withdrawal, I do not view Mr. Wise’s removal from the record as causing serious prejudice to Mr. Baradaran outweighing the interests of Mr. Wise in withdrawing. I also do not agree with Mr. Baradaran’s submission that granting the removal order would be somehow abusive of or offensive to the administration of justice.
Disposition
[14] For the foregoing reasons, I granted the removal motions and ordered that Mr. Wise be removed from the record as counsel for Mr. Baradaran in his personal capacity and his capacity as litigation guardian for each of Saba Baradaran and Sama Baradaran in Court File No. CV-14-497475 following compliance with Rule 15.04(5) of the Rules. The portion of the motion relating to Ms. Baradaran in Court File No. CV-14-497475 will be addressed at the scheduled return on October 14, 2020.
Additional Request for Return of Files
[15] After advising my disposition, Mr. Baradaran asked for term that Mr. Wise’s litigation files be turned over. I declined to do so.
[16] I agree with Myers J.’s observation in Konstan v. Berkovits, supra at para. 13 that “it would be a mistake to turn routine motions under Rule 15.04 into a form of assessment of breach of contract or breach of fiduciary duty.” While Mr. Baradaran may have a right to obtain copies of the contents of Mr. Wise’s litigation files, Mr. Wise may equally have rights in respect of those files pursuant to the Solicitors Act, RSO 1990, c S.15 or otherwise. Those issues were not before me on these motions and, in my view, it would have been inappropriate to make any determinations based on the limited record available to me. However, I did direct Mr. Wise and Mr. Baradaran to discuss the matter and, if agreement cannot be reached, the matter may be raised with me at the return of the balance of the motion in Court File No. CV-14-497475.
MASTER TODD ROBINSON DATE: August 7, 2020