Court File and Parties

Court of Appeal for Ontario Date: 20231031 Docket: M54611 (COA-23-CV-1044)

Before: Roberts J.A. (Motion Judge)

Between: 25162116 Ontario Ltd. o/a Numbrs Applicant (Respondent/Responding Party)

And: Abledocs Inc. Appellant (Responding Party)

Counsel: John K. Downing, for Miller Thomson LLP, solicitors for the appellant Alexis Beale, for the respondent No one appearing for the appellant, although properly served

Heard: October 30, 2023

Endorsement

[1] The appellant’s solicitors, Miller Thomson LLP (“Miller Thomson”), bring this motion for an order removing them as solicitors of record. Mr. Downing advised that Miller Thomson had served the appellant with the motion materials, provided the appellant with the motion scheduling information, and indicated that the appellant was entitled to appear at the motion. The appellant did not appear.

[2] Following the hearing of the motion, I released an order, with reasons to follow, that Miller Thomson was not to be removed from the record as the appellant’s solicitors prior to the disposition of the respondent’s motion in writing. These are those reasons.

[3] The chronology of the proceedings provides useful context. On August 28, 2023, Reid J. granted judgment to the respondent for unpaid bookkeeping services rendered to the appellant. The appellant served its Notice of Appeal on September 26, 2023. On October 17, 2023, the respondent served its motion in writing, returnable on October 31, 2023, for an order lifting the stay of enforcement of Reid J.’s judgment and granting security for its appeal costs. On October 18, 2023, Miller Thomson served its motion, returnable on October 30, 2023. On October 24, 2023, HSBC Bank Canada commenced its application to obtain a receivership order against the appellant, returnable on November 2, 2023.

[4] Miller Thomson’s main argument is that there has been a breakdown in the solicitor-client relationship because of the appellant’s failure to pay all of Miller Thomson’s accounts. Although not in the affidavit evidence, Mr. Downing added during oral argument that they have been unable to obtain instructions from the appellant with respect to the respondent’s motion in writing. The appellant has not filed any responding materials.

[5] The respondent opposes the solicitors’ removal prior to the disposition of its motion. It submits that the appeal is frivolous, its motion has considerable merit and there is great urgency in having its motion heard prior to the hearing of the receivership application. The respondent expresses the concern that if Miller Thomson is removed from the record prior to the disposition of its motion, the appellant could request an adjournment, which would, if granted, derail the respondent’s motion and prevent the respondent from obtaining any relief to which it is entitled prior to the hearing of the receivership application that may result in a stay of the present proceedings.

[6] The court has the discretion to refuse to remove a law firm from the record. Considerations informing the exercise of this discretion include not only the interests of the law firm’s client but also comprise factors independent of the solicitor-client relationship, such as the impact on the other parties to the proceedings and the effect on the administration of justice: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 50; KingSett Mortgage Corporation v. 30 Roe Investments Corp., 2023 ONCA 196, at paras. 13 and 18; Tremblay c. Banque de Montréal, 2023 QCCA 691, at para. 21.

[7] I am persuaded that I should exercise my discretion and refuse to permit Miller Thomson to be removed from the record prior to the disposition of the respondent’s motion. In the circumstances of this case, this order causes no prejudice to Miller Thomson or the appellant but obviates prejudice to the respondent and the administration of justice.

[8] This short delay does not place Miller Thomson or the appellant in any different position than if the law firm’s motion were granted immediately. Miller Thomson’s motion record shows that the appellant’s failure to satisfy Miller Thomson’s accounts is not new and was a longstanding issue between them. It was not until the appellant made a payment towards its significant outstanding indebtedness to the law firm that Miller Thomson advised its client on September 21, 2023 that it would be “handling the appeal”, and thereafter, on instructions from its client, filed a notice of appeal on the appellant’s behalf. According to the affidavit evidence filed, this position changed immediately following service of the notice of appeal when, “based on a new determination” by the law firm that the appellant “would be unable to satisfy its significant account receivables”, all work was to cease immediately. The appellant was advised that the law firm would be unable to act on this appeal unless the accounts receivable issues were cleared. The appellant was also advised of the respondent’s motion in writing and of the deadline for the appellant to file responding materials by October 27, 2023. Miller Thomson received no instructions from the appellant to file responding materials. The appellant did not file any responding materials by last week’s deadline. The appellant did not appear on Miller Thomson’s motion.

[9] The respondent will be prejudiced if Miller Thomson’s motion is allowed before the disposition of its motion in writing. I have read the appellant’s notice of appeal and the respondent’s motion materials as they are germane to the present motion. I agree that the respondent’s motion has considerable merit. It is unchallenged by any responding materials. The appeal principally contests the application judge’s discretionary findings that seem reasonable and grounded in the record, and, importantly, flow to a large extent from the appellant’s acknowledgment of its indebtedness to the respondent. The appellate deferential standard of review owed to the application judge renders this appeal very difficult for the appellant. This is a straightforward collection matter. It is uncertain whether a stay will be imposed immediately on November 2, 2023 as a result of the receivership application. The respondent should be given the opportunity to try to lift the stay and obtain security for its appeal costs. Any further delay or expense is very unfair to the respondent and would frustrate the due administration of justice in this case.

Disposition

[10] For these reasons, order to go that Miller Thomson LLP will be removed from the record as the appellant’s solicitors following the disposition of the respondent’s motion in writing. The form of the issued and entered order shall comply with r. 15.04(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[11] As no costs were requested, I order that there be no costs of this motion.

“L.B. Roberts J.A.”