Court File and Parties

Court File No.: CV-22-1712-0000 Date: 2023-04-26

Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton ON L9T 1Y6

Re: TSX Trust Company, Plaintiff -and- Grace Margaret Fiorentino, Defendant

Before: C. Chang J.

Counsel: Jaspreet Minhas, for the moving party

Heard: April 26, 2023 (via videoconference)

Endorsement

[1] The lawyer for the defendant (the “moving party”) brings this emergency motion for an order removing her as lawyer of record for the defendant. By endorsement dated April 24, 2023, Kurz J. granted the moving party’s request to schedule this hearing on an emergency basis under the Notice to the Profession and Parties.

[2] The moving party attended today and advised that her motion is being abandoned.

[3] However, the moving party’s materials are emblematic of a very troubling issue with so-called “off-record” motions that continues to arise with troubling frequency, which issue must be addressed.

[4] As with too many “off-record” motions that come before the court, the moving party herein completely failed to comply with rules 15.04(1.2) and (1.3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 15.04(1.2) provides for the redaction of information in the motion record that is protected by lawyer-client privilege or that could, if disclosed to another person, be prejudicial to the client. Rule 15.04(1.3) provides for the confidential provision of the unredacted motion materials to the judge or associate judge for review before deciding the motion without making those unredacted materials part of the court record.

[5] On “off-record” motions, there is an inherent conflict between the interests of counsel, on the one hand, as moving party and, on the other hand, as fiduciary. It is that inherent conflict that is addressed by the balancing of interests that is the “off-record” motion regime, including, without limitation, rule 15.04. In particular, rule 15.04(1.2) ensures that a client’s privileged and potentially prejudicial information is not disclosed to another party in the litigation or otherwise made public in any impermissible way. This rule is designed to ensure that the client’s interests are properly protected on these motions and to underscore lawyers’ continuing legal obligations to their clients both during and after their retainers.

[6] In the case-at-bar, the moving party’s motion materials were not redacted in any way and were replete with information that is not only subject to lawyer-client privilege, but is also highly prejudicial to the client in respect of her defence on the merits to this action. Those completely unredacted materials were not only served on the plaintiff, but were also filed with the court, making them public record.

[7] The moving party acknowledged her error in failing to comply with rule 15.04; however, same fails to address, in any way, the significant and irreparable damage that has already been done.

[8] It is incumbent on all counsel to ensure that this sort of behaviour is not repeated. Should this apparent trend of disregarding rules 15.04(1.2) and (1.3) continue, sanctioning of counsel may be appropriate regardless of the outcome of the motion.

[9] I therefore make the following orders:

a. this motion is struck as abandoned;

b. the plaintiff and its counsel shall forthwith completely destroy any and all copies of any and all of the moving party’s materials received by either of them in respect of this motion;

c. the motion record filed on this motion shall be removed from the court file and destroyed such that it does not form part of the court file;

d. the moving party shall forthwith serve a copy of this endorsement on the defendant and on plaintiff’s counsel.

C. Chang J. Date: April 26, 2023