Court File and Parties
Date: September 27, 2017 Court File No.: 214/17 Ontario Court of Justice
Between: Michael Daniel DeLong Applicant
– And –
Jade Sands Respondent
Before: Justice B. Tobin
Heard on: September 18, 2017
Ruling released on: September 27, 2017
Counsel:
- Surinder K. Multani ……..………………………….Counsel for the Applicant
- Michael Frank for Rayleen Cantin……….………….Counsel for the Respondent
ENDORSEMENT
TOBIN J.
[1] Motion to Remove Solicitor
[1] The Applicant moves for an order that Rayleen Cantin be removed as Solicitor of Record for the Respondent as a result of her conflict of interest.
Facts
[2] On April 20, 2017 the Respondent removed the parties' child from Windsor. Four days later the Applicant was charged by the Windsor Police on the basis of allegations made by the Respondent.
[3] On May 4, 2017 the Applicant contacted "the law office of the Respondent's current counsel" seeking legal representation. He disclosed the following information:
a. "My criminal charges, including bail conditions not to contact my son;
b. The nature of the allegations, and my stance on those allegations;
c. My history with the Respondent, and I specifically stated the Respondent's name; and
d. The concerns I had with respect to the Respondent's ability to parent and the risk of harm to our child." [1]
[4] According to the applicant, Ms. Cantin told him that his situation required an emergency motion and that she would not be available until mid-June 2017. She provided him with a list of lawyers to call and advised to call back if he could not find one.
[5] A phone log produced by the Applicant discloses that the call was initiated at 16:39 and lasted 4 minutes and 58 seconds.
[6] He contacted Ms. Cantin's office the next day and was given the names of more counsel in the community.
[7] The phone log discloses that this conversation took place at approximately 12:30 p.m. and lasted one minute and four seconds.
[8] On May 8, 2017 the Applicant started this case as a self-represented litigant in order to obtain custody and the return of his child to this jurisdiction. This application was served on May 14, 2017.
[9] The Applicant retained Ms. Multani sometime prior to June 23, 2017 when she filed an amended application and two 35.1 affidavits on his behalf.
[10] The Respondent retained or was assisted by Legal Aid Ontario counsel – not Ms. Cantin – who filed an Answer dated July 28, 2017 on her behalf.
[11] Shortly thereafter the Respondent's counsel (or the lawyer assisting her) went on a leave of absence and the Respondent was then assisted by Duty Counsel from the Family Law Services Centre.
[12] The Applicant subsequently served a Notice of Motion for interim access along with other relief that was returnable August 30, 2017.
[13] The Respondent then retained Ms. Cantin. On behalf of the Respondent, Ms. Cantin filed a Notice of Motion returnable October 2, 2017 seeking a custody order on behalf of the Respondent. In support of this request the Respondent swore an affidavit dated August 29, 2017. [2]
[14] The Applicant filed an affidavit in response sworn August 30, 2017.
[15] The parties engaged in unsuccessful settlement discussions.
[16] This motion to remove Ms. Cantin was dated September 13, 2017 and first returnable September 18, 2017.
[17] The Applicant claims that Ms. Cantin is in a conflict of interest because he contacted her before she was retained by the Respondent.
[18] Ms. Cantin is a lawyer in good standing with the Law Society of Upper Canada. She deposed that she as counsel has a "good understanding of the rules of professional conduct". [3] Ms. Cantin further deposed that:
a. She did not receive "confidential information attributable to a solicitor client relationship relevant to the within matter and there is no risk that any information can be used to prejudice the applicant" [4] ;
b. She does not recall having a conversation with the Applicant;
c. The Applicant was not provided legal advice over the telephone;
d. She did not open a file in the Applicant's name;
e. He did not attend at her office for a consultation;
f. He did not retain her; and
g. The Applicant did not share with Ms. Cantin any personal information that could assist the Respondent in her claim for custody.
[19] On August 30, 2017 counsel for the Applicant advised Ms. Cantin that her client was going to seek to have her removed as solicitor of record because he had spoken to her on two occasions, once for 10 minutes.
[20] In response to this advice Ms. Cantin sent the Applicant's lawyer an email confirming among other things, that she had a very strict conflict check process in place and that although she did have a brief conversation with the Applicant's mother she had no note pertaining to the Applicant.
[21] In their next communication, counsel for the Applicant advised Ms. Cantin that it was her client's position that she did not speak with the grandmother.
[22] Approximately a week later the Applicant's counsel confirmed in correspondence to Ms. Cantin that she did indeed speak to the grandmother but that no identifying information was given.
[23] Ms. Cantin gave evidence with respect to her practice as follows:
a. She does not generally assist individuals charged with assault against a child.
b. That if the Applicant had in fact told her the Respondent's name it would have automatically triggered a conflict of interest for her. She is familiar with the Respondent's family name. She represented the Respondent's brother for a period of time. The Respondent was part of her brother's plan for access. She further deposes that she is aware that the Respondent's family resides on Walpole Island and her involvement with that First Nation is significant. Had the Applicant ever mentioned the last name of the Respondent she would have immediately identified for the Applicant a conflict of interest; and
c. She does "not give telephone consults except in exceptional circumstances and only after she has been retained and a retainer agreement is executed by the client that addresses that very issue. Legal advice is not given over the telephone for random callers." [5]
[24] Ms. Cantin concedes that "[m]aybe [the Applicant] contacted my office. I do not know. I receive 50 calls per weeks, 20 of which are emergencies and are only accepted in exceptional circumstances at this time." [6]
[25] The Respondent, who is a First Nations individual wishes to be represented in this legal proceeding by a First Nations lawyer. Ms. Cantin is the only First Nations lawyer practicing in this city.
Legal Considerations
[26] A court should not lightly prevent a litigant from choosing counsel. It is a fundamental principle that a litigant's choice of counsel should only be infringed in clear cases. See Urquhart v. Allen Estate, [1999] O. J. No. 4816 (Ont. S.C.J.) para. 19 and Judson v. Mitchele, 2011 ONSC 6004, [2011] O.J. No. 4914 (Ont. S.C.J.) para. 23.
[27] The jurisdiction to make an order removing counsel is found in the inherent right of the court to determine, in a judicial manner, to whom it will give audience. A motion to remove an opposing solicitor is not brought pursuant to any statute or rule. See Windsor-Essex Children's Aid Society v. D.(B.), 2013 ONCJ 43 para.14.
"The standard for the 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."
[29] There are two competing values present and which must be considered in this case; (1) maintaining the integrity of the administration of justice and (2) the right of litigants not to be lightly deprived of counsel of their choice. When balancing these values the predominant consideration is the integrity of the justice system. See MacDonald Estate v. Martin [1993] S.C.R. 1235 (S.C.C.) per Justice Cory at para. 59 and 60.
[30] The Rules of Professional Conduct provide at Rule 1.02 the definition of "client." Under the commentary to that rule it states:
"A solicitor and client relationship is often established without formality… in some circumstances, a lawyer may have legal and ethical responsibilities similar to those arising from a solicitor and client relationship. For example, a lawyer may meet with a prospective client in circumstances that impart confidentiality, and, although no solicitor and client relationship is ever actually established, the lawyer may have a disqualifying conflict of interest if he or she were later to act against the prospective client. It is, therefore, in a lawyer's own interest to carefully manage the establishment of a solicitor and client relationship."
[31] Subrule 2.04 (3) of the Rules of Professional Conduct provides:
"A lawyer shall not act or continue to act in a manner where there is or is likely to be a conflicting interest unless, after disclosure adequate to make an informed decision the client or prospective client consents."
[32] While the rules of professional conduct are not binding upon courts they are persuasive.
[33] There does not need to be a finding of impropriety in order for a solicitor to be removed, rather it is the appearance of impropriety that is the test. This is particularly true when the litigation involves a family dispute.
Application of Legal Principles
[34] In this case there is conflicting evidence as to the communication between the Applicant and Ms. Cantin.
[35] The Applicant insists that he spoke to Ms. Cantin and provided specific information regarding his custody claim. There is a phone log that confirms a call from a phone in the Applicant's mother's home that was used to contact Ms. Cantin's office. His evidence is that he was given the names of other counsel who he might contact and if unsuccessful to call back for more names. The phone log discloses a further call the next day.
[36] I agree with Ms. Cantin that the information the Applicant says he gave regarding the criminal charges and bail conditions were public and would not in these circumstances be considered confidential information. However, details of his stance related to the criminal charges, his history and his concerns he had with respect to the Respondent's ability to parent would constitute confidential information. This is so even if the telephone call lasted only five minutes. The brief nature of the call does not diminish the confidential nature of the information given.
[37] Ms. Cantin's evidence is that she had no recall of having a conversation with the Applicant. She also deposes that maybe he did but she does not know. She receives 50 calls per week, 20 of which are emergencies which are only accepted in exceptional circumstances. Consistent with the evidence of the Applicant, she states that on many occasions callers are referred to other lawyers if she cannot assist.
[38] I accept that Ms. Cantin has no recollection of speaking with the Applicant. She deals with many people. In contrast this is the Applicant's case and it is of great significance to him.
[39] Were this the only evidence I would have no hesitation in finding that communication took place and confidential information was provided. But this is not the case.
[40] The Applicant deposes that he told Ms. Cantin the Respondent's name. Ms. Cantin knew this name. She knew the Sands family. She knew the Respondent's name as she was involved with her brother's case and he was a client of Ms. Cantin.
[41] This supports a finding that that the Applicant did not speak to Ms. Cantin and explains why she has no recollection of speaking to him – because she did not.
[42] In these circumstances I am left with two versions of what may or may not have transpired between the Applicant and Ms. Cantin. The onus on this motion brought by the Applicant is on him to satisfy the court on the balance of probabilities that his version is the preferred one. He has not done so to my satisfaction. I am not satisfied on the balance of probabilities that confidential information was provided by the Applicant to Ms. Cantin.
[43] Despite Ms. Multani's able argument I am satisfied that in weighing all of the circumstances presented in this motion along with a consideration of the prejudice to both parties that a fair minded, reasonably informed member of the public would not conclude that the proper administration of justice requires the removal of Ms. Cantin as counsel for the Respondent.
[44] Accordingly, the motion must be dismissed.
[45] I conclude by observing that it was appropriate for the Applicant and his counsel to raise this important issue very early in this proceeding. I do not see this motion as a tactical move on the Applicant's part. The Applicant, based on what he understood to be the case, was rightly concerned to raise this matter when he did and put it before the court for determination.
[46] This is not a case for costs.
Justice B. Tobin
Released: September 27, 2017
Footnotes
[1] Affidavit of Applicant sworn September 13, 2017 para. 14.
[2] Continuing Record Volume 1 at Tab 15
[3] Affidavit of Rayleen Cantin sworn September 14, 2017 para. 3.
[4] Affidavit of Rayleen Cantin sworn September 14, 2017 supra
[5] Affidavit of Rayleen Cantin supra para. 21.
[6] Affidavit of Rayleen Cantin supra para. 19.