Consky et al. v. Famous Players Inc. [Indexed as: Consky v. Famous Players Inc.]
91 O.R. (3d) 784
Ontario Superior Court of Justice, Divisional Court, Brockenshire, Wilson and Karakatsanis JJ. October 10, 2008
Professions -- Barristers and solicitors -- Disqualification -- Motion judge removing plaintiff's lawyer as solicitor of record in slip-and-fall action on basis that his conduct in contacting corporate counsel of non-party was imprudent and improper and in breach of rules 4.03(2) and 6.03(7) of Rules of Professional Conduct -- Plaintiff's appeal allowed -- Motion judge mischaracterizing proper legal test for removing solicitor of record and erring in her conclusion that Rules of Professional Conduct applied.
On a motion by the defendant brought on the eve of mediation in a slip-and-fall case, the motion judge removed the plaintiff's lawyer as solicitor of record on the basis that his conduct in contacting corporate counsel of a non-party was "imprudent and improper" and in breach of rules 4.03(2) and 6.03(7) of the Rules of Professional Conduct. The plaintiff appealed.
Held, the appeal should be allowed.
It was undisputed that the plaintiff's lawyer spoke to corporate counsel of the non-party in order to clarify issues with respect to the ownership of the premises where the slip- and-fall occurred, and that he first confirmed that the non- party was not a client of the defendant's law firm, that it was a separate entity from the owner of the premises and that it had not assumed any liabilities or obligations of the owner of the premises. In these circumstances, there was no conflict of interest, and the Rules cited by the motion judge had no application. The motion judge mischaracterized the proper test for removing a solicitor of record. There was no conduct by the plaintiff's lawyer that, considered objectively, brought into question public confidence in the justice system.
APPEAL from the order of Allen J. dated April 7, 2008, removing the plaintiff's lawyer as the solicitor of record.
Cases referred to Jorgenson v. San Jose Mines Ltd., [2004] B.C.J. No. 1562, 2004 BCCA 400, 202 B.C.A.C. 67, 30 B.C.L.R. (4th) 344, 132 A.C.W.S. (3d) 1013; Williams v. Stephenson, [2005] B.C.J. No. 1949, 2005 BCSC 1271, 46 B.C.L.R. (4th) 366, 142 A.C.W.S. (3d) 186
Rules and regulations referred to Law Society of Upper Canada, Rules of Professional Conduct, rules. 4.03(2) [as am.], 6.03(7) [as am.], 6.03(9)
Alfred J. Esterbauer, for plaintiffs (appellants). Michael W. Chadwick, for defendant (respondent).
[1] Endorsement BY THE COURT: -- The plaintiffs seek to set aside the interlocutory order of Allen J. dated April 7, 2008. She ordered that Harvey S. Consky be removed as solicitor of record [page785] for the plaintiffs. She concluded that it was "imprudent and improper" for Mr. Consky to have contacted corporate counsel of a non-party in the circumstances of this case. She concluded that Mr. Consky was in breach of rules 4.03(2) and 6.03(7) of the Rules of Professional Conduct and his conduct created an appearance of impropriety.
[2] Jennings J. granted leave to appeal the order. He concluded that there was good reason to doubt the correctness of the decision made, as the Rules of Professional Conduct were not engaged in the facts of this case, and the matter was of importance to the legal profession.
Background Facts
[3] The claim advanced by Molly Consky, now age 85, is with respect to a slip-and-fall which occurred in 2004 when she was entering the auditorium to view a film at the theatre of the defendant Famous Players Inc. located at 259 Richmond Street West (the "Premises"). Molly Consky broke her hip and sued for damages against the defendant Famous Players Inc. as occupiers of the Premises. There are also third-party, and fourth-party claims.
[4] Mr. Consky is Molly Consky's nephew and had been representing her until the order of Allen J. All discoveries are completed, and the matter is ready for trial. On the eve of the scheduled mediation, the defendant brought the motion to remove Mr. Consky as solicitor of record.
[5] The facts are not in dispute with respect to the incident giving rise to the motion.
[6] Mr. Consky spoke to corporate counsel for Cineplex to clarify issues with respect to the ownership of the Premises triggered by a change of signage he had observed at the exterior of the premises. Before Mr. Consky spoke to corporate counsel, he clarified with her that Cineplex was not a client of the defendant's law firm, that it was a separate entity from the owner of the Premises, and that Cineplex had not assumed any liabilities or obligations of the owner of the Premises.
[7] No confidential or prejudicial information was discussed in the telephone call. The plaintiffs allege that a cause of the slip-and-fall was inadequate lighting in the Premises. Mr. Consky briefly described the outstanding action to corporate counsel for Cineplex and indicated that if the matter was not resolved at mediation, then he would be seeking access to the Premises to allow his engineers to take readings with respect to lighting.
[8] Corporate counsel for Cineplex spoke to counsel for the defendant raising concerns about this contact, resulting in the defendant's motion to remove Mr. Consky as solicitor of record. [page786]
Analysis
[9] The motions judge relied on the inherent jurisdiction of the court to assume a supervisory role over the conduct of lawyers as officers of the court if the integrity of justice is affected by their conduct. She concluded that it was "imprudent and improper" for Mr. Consky to have contacted corporate counsel, and not counsel for the defendant. She found that an objective, fair-minded member of the public would conclude that the solicitor should be removed in the interests of justice.
[10] The motions judge also relied upon [rules] 4.03(2) and 6.03(7) of the Rules of Professional Conduct in reaching the conclusion that there was the appearance of impropriety with respect to the telephone call. These rules prohibit direct contact by a party or counsel, if the opposite party is represented by counsel. During argument, counsel for the respondent submitted that although the motions judge did not refer to it, rule 6.03(9) has application in this case. Given the change in signage and the preventative measure he took, we do not agree that Mr. Consky contacted a person likely involved in the decision-making process of the defendant corporation. Clearly before asking the questions Mr. Consky ensured that Cineplex was not involved in any way in this proceeding, and that it was not represented by the defendant's counsel. There was no conflict of interest. We conclude that these Rules have no relevance or application to this case.
[11] Parties are entitled to their choice of counsel, and that right ought not to be lightly interfered with unless there are compelling reasons to do so. (See Jorgenson v. San Jose Mines Ltd., [2004] B.C.J. No. 1562, 2004 BCCA 400, at para. 31; Williams v. Stephenson, 2005 BCSC 1271, [2005] B.C.J. No. 1949, 46 B.C.L.R. (4th) 366 (S.C.), at para. 81.) There was no conduct by Mr. Consky when considered objectively that brings into question public confidence in the justice system. The defendant's motion smacks of gamesmanship.
Conclusion
[12] We conclude that the motions judge mischaracterized the proper legal test for removing a solicitor of record. She misconstrued uncontested facts and was clearly wrong in her conclusion that the Rules of Professional Conduct had application to the uncontested facts of the case. The appeal is allowed, and Mr. Consky is reinstated as counsel for the plaintiffs.
Costs
[13] Jennings J. reserved the issue of costs on the motion for leave to appeal to the panel. [page787]
[14] In view of the timing of this motion, on the eve of mediation involving an 85-year-old plaintiff, and the undisputed facts of this case, we have concerns about the motivation for bringing this motion. We agree with the appellants submission that this was a tactical motion that brought into question the professional integrity of counsel. The initial motion material alleged a more serious breach of the Rules of Professional Conduct alleging that Mr. Consky had contacted the defendant. It resulted in an aborted mediation and three separate appearances before the court. Significant costs are justified in these circumstances.
[15] The plaintiff seeks a total of $40,700 for substantial indemnity costs for the aborted mediation, the motion and the appeal. The defendant submits costs of $9,000 are appropriate adjourning the costs for the aborted mediation.
[16] We have considered the detailed bill of costs, the reasonable expectation of the losing party, [and] the complexity and importance of the issues in the facts of this motion and fix costs to the applicant for the aborted mediation, the initial motion, the motion for leave to appeal and this appeal in the amount of $27,500 all inclusive.
Appeal allowed.