Court of Appeal for Ontario

CITATION: C-A Burdet Professional Corporation v. Gagnier, 2016 ONCA 735

DATE: 20161007

DOCKET: C61579

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

C-A Burdet Professional Corporation and Claude-Alain Burdet

Appellants

and

Daniel Gagnier

Respondent

Claude-Alain Burdet, acting in person

Yanik Guilbault, for the respondent

Heard: September 19, 2016

On appeal from the order of Justice Ronald M. Laliberté of the Superior Court of Justice, dated December 18, 2015[^1].

ENDORSEMENT

[1] The respondent brought a motion in his family law proceedings for an order compelling his former solicitor, Me Burdet, and the solicitor’s firm to deliver a copy of his file to his new lawyer, Me Guilbault.

[2] The appellants resisted the motion on the basis of their claim to a solicitors’ lien over the file. There are significant unpaid fees and disbursements. The lawyer’s accounts include amounts advanced to the respondent to meet his support obligations. A numbered company controlled by Me Burdet made loans to the respondent that were secured by a mortgage and other security from the respondent and his company, Ferme Ste. Rose. Me Burdet and the numbered company have commenced a separate proceeding in the Superior Court against the respondent and his company in respect of the amounts they claim.

[3] In response to the motion for production of the file, the appellants also asserted that there was no need for the respondent’s new counsel to have the entire file, including parts reflecting the financial dealings between the appellants and the respondent. The appellants argued that only parts relating to the remaining issue in the family law proceedings, equalization of net family property, ought to be produced.

[4] When the motion first came before the motion judge on November 27, 2015, he ordered that Me Guilbault could attend at Me Burdet’s office to review the file, an exercise the judge later described as “futile”. When the matter returned before the motion judge on December 18, 2015, Me Guilbault sought an order to take possession of the complete file so that he could make copies of what he needed. Again, the motion was resisted by the appellants on the basis of their claim to a solicitor’s lien.

[5] The December 18, 2015 order required the appellants to turn over possession of their complete file to the respondent or to Me Guilbault, for copies to be made of any of the file contents at Me Guilbault’s expense and for the return of the file to the law firm two weeks later. In granting the order, the motion judge considered a number of factors, including:

• that there was a dispute as to why the solicitor-client relationship between the appellants and the respondent had ended,

• that the rights of a third party (the wife in the family law proceedings) would be adversely affected if access to the file were denied to the respondent’s new solicitor,

• that it was necessary for the new lawyer to have access to the complete file to have a complete perspective on the proceedings, and

• that Me Burdet had commenced a civil action in respect of the outstanding legal fees, so that he had recourse against the respondent other than through reliance on the solicitor’s lien.

[6] The appellants appealed to this court.

[7] In their appeal, the appellants initially raised a number of issues. They argued that physical possession of the entire file by the respondent and his solicitor was unnecessary and would interfere with their solicitor’s lien and the action they had commenced against the respondent. They complained that the motion judge had failed to impose appropriate terms and conditions on the respondent to protect the appellants’ claim and lien. They sought an order permitting them to retain the original file, and to provide access to the file on condition that the respondent deposit money into court pending disposition of their claim against the respondent.

[8] For the reasons that follow, we conclude that it is unnecessary to determine whether there was any reviewable error in the motion judge’s disposition of the respondent’s motion.

[9] As a preliminary matter, there is the question of whether the appeal was properly before this court. The respondent contends that the order appealed from was interlocutory and therefore that any appeal was with leave to the Divisional Court pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. We disagree. The appellants were third parties or “strangers” to the matrimonial litigation in which the motion was brought. While the order was interlocutory as between the parties to that litigation, because it did not finally dispose of any issue between them, the current jurisprudence indicates that it was final as between the respondent and the appellants, for the purpose of an appeal of the order by the appellants. See Royal Trust Corporation v. Fisherman (2001), 2001 CanLII 4080 (ON CA), 55 O.R. (3d) 794 (C.A.), at para. 12.

[10] As for the substance of the appeal, the appellants changed their position during the course of the hearing of the appeal. They abandoned their argument that they should not be forced to turn over the entire file. Ultimately, they agreed to hand over everything that was in the file (whether or not related to the family law proceedings, and including “financing documents”), but in some cases they proposed to produce copies rather than originals.

[11] Me Burdet explained that he was reluctant to give up, even temporarily, possession of original documents signed or initialled by the respondent, including documents that are held as collateral security for monies owed by the respondent to the appellants. He is concerned that the documents, inadvertently or otherwise, may be altered, lost or misplaced, with the result that the appellants’ claim against the respondent for unpaid fees and other amounts may be jeopardized.

[12] The appellants are also concerned about the cost of having to print out documents stored in their file electronically and they resist Me Guilbault’s request for a “continuing record” (which they say would entail getting documents from the court file) before the file is handed over.

[13] Me Guilbault agreed to substantially all of these terms. He would accept electronic versions of documents stored electronically, and he would be satisfied with copies of documents signed or initialled by the respondent, and copies of share certificates that are in the file. While he wanted a continuing record to be prepared by Me Burdet’s firm, the original order would not have required the appellants to obtain and copy documents from the court file.

[14] After hearing from both counsel, we are of the view that it is unnecessary to determine whether the motion judge erred in making the order in question, and that a variation of the order that will meet the appellants’ remaining concerns without causing prejudice to the respondent or Me Guilbault is appropriate.

[15] Accordingly the order of December 18, 2015 is varied as follows:

• The appellants are not required to transfer possession of any original documents signed by the respondent or share certificates that are in the file, but shall permit inspection of the originals and shall provide photocopies of such documents to the respondent or Me Guilbault at the appellants’ own expense.

• Any records, documents or communications stored in the file in electronic form may be provided to the respondent or Me Guilbault in such form. In other words, emails and other documents stored electronically need not be printed out.

• For greater certainty, any pleadings, affidavits or other documents that would be found in a continuing record shall be produced in the form in which they have been retained in the file. There is no requirement for the appellants to assemble file documents into the form of a “continuing record” or to obtain copies of any document from the court file.

[16] These variations are consistent with the spirit of the order of the motion judge, and protective of the legitimate interests of the parties. The appeal is therefore allowed to this extent only.

[17] In view of the appellants’ abandonment of their key arguments on appeal, and their changed position during the hearing of the appeal, in which they were willing to comply with the order of the motion judge, subject to variations that were not opposed by the respondent, the respondent is entitled to his costs of the appeal, which we fix at $5,000, all inclusive.

“K.M. Weiler J.A.”

“R.A. Blair J.A.”

“K. van Rensburg J.A.”

[^1]: Although the appeal is erroneously styled as being between the named appellants and the respondent, the motion was brought, and the order was made, in Superior Court of Justice proceeding No. FC-09-854 between Chantal Brisson, Applicant, and Daniel Gagnier, Respondent, and the appeal should have been styled in that proceeding.