Court File and Parties
Court File No.: 39/15 (0001) Date: 2016-03-10 Ontario Court of Justice
Between: K.R., Applicant J.J. Avery and Raymond Colautti for the Applicant
— And —
M.R., Respondent Tanya McNevin for the Respondent
Heard: March 2, 2016
Decision
TOBIN J.:
1: The Motion
[1] The respondent seeks an order removing Ms. Avery as the applicant's solicitor of record within contempt proceedings initiated by her.
2: Facts
[2] On August 11, 2015, an Order (the "Order") was granted by Justice Ross based on Minutes of Settlement that provided the applicant and respondent share joint custody of their daughter, S.L.R. born […], 2004 (the "child"). The Order also provided that the child's primary residence would be with the applicant and the child would be in the care of the respondent at defined times. One of the times was during the 2015 Thanksgiving weekend from October 10 to October 12.
[3] In that proceeding which resulted in the Order, the applicant was represented by Ms. Avery and the respondent by Ms. McNevin.
[4] Before the Thanksgiving time in care with the respondent was to take place, the applicant advised her that he intended to keep the child with him because he had purchased tickets to see an illusionist at the casino in Windsor. Counsel for the respondent, Ms. McNevin, then wrote counsel for the applicant, Ms. Avery, about the Thanksgiving weekend asking for confirmation in writing that the applicant did not intend to breach the Order. The requested written confirmation was not provided, nor did the child spend the Thanksgiving weekend with the respondent. As a consequence, the respondent brought a Contempt Motion against the applicant. The Contempt Motion remains outstanding.
[5] The Contempt Motion and a motion brought by the applicant were before Justice Ross on October 21, 2015. Justice Ross found there was a high degree of conflict between the parents and ordered the child be "immediately placed in the care and custody of the Windsor-Essex Children's Aid Society." Two days later, on October 23, 2015, the Society started a child protection application in accordance with Justice Ross' Order.
[6] Within the child protection application an affidavit sworn by a child protection worker was filed. Attached to the affidavit was a police report in which reference was made to the applicant's lawyer, Ms. Avery. This police report was appended to the respondent's affidavit filed on this "remove solicitor" motion, without objection by the applicant. The police report disclosed the following:
On October 7, 2015, the applicant went to the Windsor Police Station and met with P.C. Coughlin.
The applicant informed the officer about difficulties he had with the respondent concerning custody of their daughter and that an emergency motion was granted by a Family Court Judge but the motion would not be reached until October 14, 2015 at the earliest.
The applicant's lawyer, Ms. Avery, also attended at the police station with a copy of the Order.
The officer informed the applicant and Ms. Avery that "unless there is an apprehension order the police are not going to take a child away from a parent."
The applicant was told by the officer to call the police if the respondent went to him and he refused her access.
Ms. Avery advised the officer that the applicant was not going to allow access that weekend for the safety and wellbeing of the child.
The police officer left a voice mail message for the respondent advising her that the applicant would not be allowing access to the child.
[7] Ms. Avery's evidence on this motion is that on October 7, 2015 she received a text from the applicant asking her to bring a copy the Order to him at the police station. When she received the text she happened to be at the Ontario Court of Justice courthouse. She went to the Family Court administration office, obtained a copy of the Order and then took it to the police station.
[8] While at the police station with the applicant, Ms. Avery confirmed to the officer the applicant's statement that an emergency motion was "brought and accepted by Justice Ross under R. 14(4.2) of the Family Law Rules."
[9] Ms. Avery deposed that her participation at the police station was as legal counsel for the applicant. She told the police officer dealing with the applicant what legal process was ongoing. She also deposed that she spoke privately with the applicant about "competing legal objectives and possible implications."
3: Position of the Parties
The Respondent:
[10] On the Contempt Motion, the respondent will be required to demonstrate that the applicant deliberately and wilfully disobeyed Justice Ross' unequivocal order that the child spend the Thanksgiving weekend with the respondent. The respondent argued that details of Ms. Avery's conversation with the police officer on October 7, 2015 are relevant and necessary to the determination of whether the respondent acted in this manner. As Ms. Avery must be a witness she cannot also be counsel, therefore she must be removed. According to the respondent, in this case the proper administration of justice overrides the applicant's right to counsel of his choice.
The Applicant:
[11] The applicant submits that his right to counsel of his choice should not be taken away in the circumstances of this case. This position rests on two basis. The first is that the evidence of Ms. Avery with respect to her attendance at the police station does not meet the requisite degree of materiality and necessity to justify removing her as counsel. The second is that any evidence not of a solicitor and client basis is available through other means such as the police officer with whom Ms. Avery interacted.
4: Legal Considerations
[12] A court should not deprive a litigant of his or her choice of counsel without good cause. It is a fundamental principle that a litigant's choice of counsel should only be infringed in clear cases: Windsor Essex Children's Aid Society v. D.(B.), 2013 ONCJ 43, at para. 13.
[13] In deciding whether a lawyer should be removed, a court must consider the right of a litigant not to be deprived of preferred counsel, due to the inherent hardship on the litigant. This right must be tempered by the ongoing concern of maintaining the high standards of the legal profession and the integrity of the justice system: Rice v. Smith et al., 2013 ONSC 1200, paras. 15 and 16 and Windsor Essex Children's Aid Society v. D.(B.), supra, at para. 16.
[14] In the exercise of discretion in circumstances such as here where the issue is "lawyer as witness", the court may consider, but is not bound by, codes of professional conduct: Rice v. Smith et al., supra, at para. 17.
[15] The Rules of Professional Conduct provide at rule 4.02(2) that a lawyer appearing before a tribunal "...should not testify before the tribunal unless permitted to do so by the rules of the court ... or unless the matter is purely formal or uncontroverted."
[16] The commentary to this rule states in part, "[t]he lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer."
[17] The issue of "lawyer as witness" was considered by Justice Leach in Rice v. Smith, at paras. 19 and 20, as follows:
[19] The particular conflict of interest prohibition dealing with "lawyer as witness" is intended to prevent the inevitable conflict of interest a lawyer otherwise would have between the duty owed to his or her client, and duties of independence otherwise owed to others, especially the Court. In particular, lawyers are independent officers of the court, and a trial judge must be able to rely upon counsel for a high degree of objectivity and detachment. That fundamental relationship is compromised, and the administration of justice and integrity of the system accordingly are undermined, where the objectivity and credibility of counsel necessarily are subjected to challenge in the course of determining the substantive merits of an underlying dispute. [footnotes omitted]
[20] However, rather than approach the general "lawyer as witness" conflict of interest concern and prohibition as an absolute rule, our courts adopt a flexible approach and consider each case on its own merits, having regard to a variety of factors that, according to the circumstances of the case, may include the following:
a. the stage of the proceedings;
b. the likelihood that the witness will be called;
c. the good faith (or otherwise) of the party making the application;
d. the significance of the evidence to be led;
e. the impact of removing counsel on the party's right to be represented by counsel of choice;
f. whether trial is by judge or jury;
g. the likelihood of a real conflict arising or that the evidence will be "tainted";
h. who will call the witness; and
i. the connection or relationship between counsel, the prospective witness and the parties involved in the litigation. [footnotes omitted]
[18] Mr. Colautti, on behalf of the applicant, centred his argument on whether Ms. Avery could be compelled by summons to witness to testify. Relying upon Konstan v. Berkovits, 2013 ONSC 6169 and R. v. 1504413 Ontario Ltd., 2008 ONCA 253, he submitted that the issuance of a summons to opposing counsel – which is what would have to happen before Ms. Avery would testify against her client – should not be acted upon absent exceptional circumstances that relate to the materiality and the necessity of the lawyer's evidence.
[19] In R. v. 1504413 Ontario Ltd., supra, the Court of Appeal stated at para. 16 and 17:
[16] Whether as a matter of custom or policy, issuing a summons to counsel for the opposite party to testify against his or her client is virtually unheard of and it should not be done absent the most exceptional circumstances.
[17] At a minimum, such circumstances would require a showing of high materiality and necessity (assuming that the proposed evidence is otherwise admissible). Although not exhaustive, necessity in this context will involve considerations such as the importance of the issue for which the testimony is sought, the degree of controversy surrounding the issue, the availability of other witnesses to give the evidence or other means by which it may be accomplished (such as the filing of an agreed statement of fact), the potential disruption of the trial process and the overall integrity of the administration of justice. [footnotes omitted]
[20] The premise upon which the applicant founded his argument, that is, a motion to quash a summons to witness directed to Ms. Avery, is not the case before the court. Nonetheless, the factors to be considered are substantially the same whether a court is asked to remove a solicitor or quash a summons that would require a lawyer to testify against his or her client. In both instances the court is required to balance the competing values of maintaining the integrity of the administration of justice and the right of litigants not to be lightly deprived of counsel of their choice.
[21] When considering the importance of maintaining the integrity of administration of justice, Justice Czutrin, in R.(C.) v. Children's Aid Society of Hamilton, 4 R.F.L. (6th) 98, held at para. 34:
"The standard of removal of counsel is an objective one, which is that of a reasonably informed member of the public. The issue is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor."
5: Application of Legal Principles
[22] Ms. Avery is clearly the applicant's desired counsel. She represented him in the case that resulted in the Order. He continued to look to her for representation regarding the legal issues that have arisen subsequent to the Order being granted, including the Contempt Motion.
[23] Though a number of months have passed since the commencement of the Contempt Motion, procedurally it remains early in the process. No conferences have been held. There would be little lost if counsel was removed and successor counsel retained and briefed.
[24] It appears that the basis of the respondent's motion is her wanting to examine Ms. Avery on her role in attending at the police station with the applicant on October 7, 2015. In the context of the Contempt Motion before the court, the respondent wants to know what evidence Ms. Avery has that is of high materiality and necessity related to whether the applicant deliberately and willfully refused to provide the child to the respondent during the scheduled Thanksgiving time in care.
[25] Ms. Avery's evidence on this motion was provided in the form of her affidavit. She provided details of her reasons for attending the police station and her interactions with the police officer. As was conceded by the respondent, no information that would be protected by solicitor and client privilege was or should be disclosed.
[26] The evidence given by Ms. Avery is consistent with the summary prepared by P.C. Coughlin as contained in the Windsor Police Service general occurrence report. In essence Ms. Avery gave or showed the officer the Order and explained the legal process that was then ongoing.
[27] There is no suggestion in the police report or her affidavit that Ms. Avery compromised herself by trying to influence the manner in which the police might deal with the possibility of a confrontation between the respondent and the applicant over access on the Thanksgiving weekend. The officer told her how the police would respond.
[28] The respondent argued that she wanted to cross-examine Ms. Avery on the issues raised. However, she had that opportunity in this motion. She could have conducted a cross-examination of Ms. Avery on the affidavit she swore and filed but did not do so.
[29] I find that the evidence of Ms. Avery regarding her attendance at the police station is uncontradicted in any material way and I accept it for the purpose of this motion.
[30] From Ms. Avery's evidence of her attendance at the police station, it is clear that the applicant knew about the Thanksgiving weekend provision Order. It is also clear he did not want that access to take place. This evidence is available from the police officer and the applicant.
[31] I am not satisfied that Ms. Avery's evidence reaches the high degree of materiality and necessity such that the applicant's choice of counsel must give way for the sake of the proper administration of justice. This is not one of those extraordinary circumstances where the due administration of justice would be called into question if Ms. Avery remains as solicitor of record for the applicant.
[32] Another factor to consider is the reason the motion was brought. I find that there is no evidence that this motion was brought in bad faith or for improper tactical reasons.
[33] On the basis of the legal considerations and facts set out above, I find that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice does not require Ms. Avery to be removed as solicitor of record. She gave information to a police officer about a court order, ongoing proceedings and her client's intentions. She did not involve herself further in this case. Her information is available from other witnesses. The facts on this motion do not support interfering with the applicant's choice of counsel.
6: Order
[34] The respondent's motion to have Ms. Avery removed as solicitor of record is dismissed.
[35] While this decision was under reserve the respondent filed a 14B motion and supporting affidavit requesting that her motion seeking dismissal of the applicant's motion to vary custody and access (C.R. Vol 2, Tab 20) be scheduled. Counsel were advised at the conclusion of argument on this motion that a return date for all of the motions would be directed as part of this decision.
[36] I direct that all outstanding motions in this case be adjourned to March 30, 2016 at 10:00 a.m. in Courtroom # 4:
for argument of the respondent's motion seeking dismissal of the applicant's motion to vary custody and access (C.R. Vol 2, Tab 20);
to set a settlement conference on the Contempt Motion; and
for the balance of the motions to be spoken to regarding next steps and dates.
[37] If this date is not convenient to counsel, the matter may be brought before me by telephone conference at 9:15 a.m. on a date set by the Trial Co-Ordinator.
[38] If costs are sought, brief submissions (2 pages) and a Bill of Costs and offers to settle are to be filed with the Trial Coordinator by the applicant within seven (7) days of the release of these reasons and by the respondent five (5) days thereafter.
Released: March 10, 2016
"original signed and released"
Barry M. Tobin Justice
Footnotes
[1] Mr. Colautti argued this motion on behalf of the applicant.
[2] The motion was brought "[p]ursuant to rule 4 (4.2) of the Family Law Rules" to grant the applicant custody of the child and to limit the respondents access to the child. The respondent subsequently brought a motion to dismiss the rule 4 (4.2) motion on the basis that "this court is functus officio …" These motions remain outstanding pending the determination of this "remove solicitor" motion.
[3] The applicant's appeal from this order is outstanding.
[4] The child protection application was subsequently withdrawn and the child returned.