COURT FILE NO.: 09-45430
DATE HEARD: March 1, 2012
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Carleton Condominium Corporation No. 396 v. Claude-Alain Burdet et al
BEFORE: MASTER PIERRE E. ROGER
COUNSEL: Mark P. Seebaran for the Plaintiff Email: mark.seebaran@nelligan.ca Ph: (613) 231-8352 Fax: (613) 788-3668
Claude-Alain Burdet for the Defendants Email: info@NelsonStreetLawOffices.com Ph: (613) 241-7777 Fax: (613) 241-5391
E N D O R S E M E N T
[1] This Court heard two motions. The first, by the Plaintiff, is a motion to remove Claude-Alain Burdet as lawyer of record for the Defendants who have pled to this action, except for himself personally. The second, by the Defendants, is a motion to remove Nelligan O’Brien Payne (Nelligan) as lawyers for the Plaintiff.
Background information
[2] The Plaintiff, Carleton Condominium Corporation No. 396 (CCC 396), is a commercial condominium in the City of Ottawa with 33 units. The 33 units are spread over the basement, first floor and second floor. CCC 396 is currently under the control of Condominium Management Group Inc. (CMG).
[3] There are eight Defendants:
(i) Claude-Alain Burdet: Mr. Burdet has purchased a number of units with one registered in his name and the other registered to him in trust. Mr. Burdet is also acting as lawyer for the defendants who have plead in this action.
(ii) Claude-Alain Burdet In Trust owns 15 units in trust.
(iii) 1457563 Ontario Corporation owns two units. Luc Burdet (Mr. Burdet’s son) has been the President of 1457563 Ontario Corporation since April 2001.
(iv) 145763 Ontario Corporation In Trust.
(v) Janet Sue Burdet was Mr. Burdet’s wife. She is the registered owner of three units which were conveyed to her by Mr. Burdet.
(vi) Nelson Street Law Offices is the law firm under which Mr. Burdet practices. It is a tenant of one of the units in CCC 396. This Defendant has not defended the action.
(vii) L’Académie Christiane Sauvé Inc. This is a tenant of one of the units in CCC 396. This Defendant has not defended the action.
(viii) International Beauty Depot. This is a tenant of one of the units in CCC 396. This Defendant has been noted in default.
[4] Mr. Burdet, Ms. Burdet and 1457563 Ontario Corporation together own 21 of the 33 units. They are the Majority Owners. The Plaintiffs in another action, having court file number 01-CV-18977 (Patrick Dewan, Domicile Developments Inc., 1436984 Ontario Ltd., Amira Gabriel, 1496055 Ontario Inc., 117490 Canada Inc., and Sheila Ebert), own seven of the remaining 12 units. They are the Minority Owners. Both groups of owners have made various allegations against each other in a number of proceedings relating to the management of CCC 396 and the conduct of the other group, with litigation going back more than ten years.
[5] As a result of court proceedings, CCC 396 is managed by an independent manager, CMG. The Order of Justice Lalonde, dated April 2, 2002, (2002 Order) provides that “an independent management company, namely Condominium Management Group, assumes the complete management of Carleton Condominium Corporation No. 396 as of April 2, 2002, in the place of the Respondent [Claude Alain Burdet, In Trust] and E.T.R.E. and prepares a report on the physical condition of the Condominium for the Court”. This Order was appealed to the Divisional Court, which dismissed the appeal. It was then appealed to the Court of Appeal, which refused Mr. Burdet’s application for leave to appeal. As a result, the manager, CMG, has remained in place since 2002: see the decision of Justice Kane in Dewan v. Burdet, 2011 ONSC 5749 at paras. 26-28.
[6] In the Dewan v. Burdet matter, a motion was heard before Justice Kane in September 2011 for relief including the dismissal of that action for delay. Jonathan H. Fine is listed as lawyer with Mr. Burdet for the Defendant/Moving Party. Justice Kane dismissed the motion and ordered the manager to bring a motion to settle its terms of reference and advise the Court regarding the performance of its mandate and recommendations as to the future management of CCC 396.
[7] This action was started by CCC 396 in 2009 for an order for immediate possession of the 21 units owned by the Defendants, an order terminating the leases granted in relation to those units, and a judgment for all arrears of unpaid common expenses, interest and costs against these units. The Defendants filed a counterclaim for various remedies, including damages, against CCC 396 relating, amongst others, to an oppression claim and a claim of set-off in the amount of $296,000.00 against any amount owed to CCC 396.
[8] This action has not proceeded expeditiously. This Court has made a number of procedural/case management orders. Despite these, examinations for discovery had not yet been conducted by the time this motion was heard.
[9] CCC 396 brought a motion for summary judgment in 2010 seeking: possession of the 21 units, an order authorizing disbursement of money held in trust, and judgment for the arrears of common expenses against the Defendants. The motion for summary judgment was heard by Justice Kane over a number of days in 2011. Jonathan H. Fine is listed as lawyer with Mr. Burdet for the Defendants. None of the affidavits delivered by the Defendants on this motion for summary judgment were sworn by Mr. Burdet. Further, the Plaintiff did not seek to examine Mr. Burdet for purposes of the motion for summary judgment.
[10] In September 2011, Justice Kane granted partial summary judgment against the Defendants in the amount of $109,440.52, indicating that the Defendants owed CCC 396 some amount greater than $109,440.52 but that the evidence was not sufficiently detailed for him to determine the precise amount owing. Justice Kane ordered a trial of the issue pursuant to Rule 20.04(3): see the decision of Justice Kane in Carleton Condominium Corporation No. 396 v. Burdet, 2011 ONSC 5807, for a more fulsome description of the factual background.
[11] Following an appointment to address how to proceed with the trial of the issue, Justice Kane released, on January 11, 2012, an Endorsement on trial scheduling for the trial of the issue ordered by his endorsement on the motion for summary judgment, which defines the issues to be tried in June 2012. Justice Kane indicates that the issue of any added liability of the Defendants to CCC 396 is proceeding to determination by trial for five days before him starting June 18, 2012 pursuant to directions under Rule 20.05 (paras. 38 to 53). He states that “Quantification of liability will involve determination of appropriate levels of past common expenses, special assessments and Administrators fees” (para. 17). Considering ss. 84(3) of the Condominium Act, 1998, S.O. 1998, c. 19, he indicates that the $296,000 issue raised in the Defendants’ counterclaim will not be an issue at the June trial (para. 23). He provides that the “defendant Minority owners’ liability to CCC 396 is to proceed to determination by trial” this June. He provides a timeline and defines the issues for that trial (paras. 38-53):
- The issues for trial and determination are:
(a) How much liability is owed by each defendant per unit for common expenses to CCC 396, including the individual defendant unit owners statements of account per unit at the commencement of the appointment of the Administrator in 2002, the expenses and receipts of CCC 396 since the Administrator’s appointment, the basis of any special assessments since 2002 and the per unit share thereof, the calculation of each defendant’s liability for expenses, periodic common expenses per unit and the defendants payments on account, (collectively referred to herein as “Statement of Accounts”);
(b) The calculation of each defendant’s indebtedness to CCC 396 as of the date of registration of liens and Notices of Power of Sale by the condominium if possession or sale are claimed by CCC 396;
(c) The validity of the registered liens and the notices of sale served on the defendants; and
(d) Is the plaintiff entitled to possession of the subject units?
- The trial shall proceed on the basis of the facts as determined in the summary judgment decision including the following, namely:
(a) The defendants, combined, are indebted to CCC 396 for some amount in excess of $190,544, [$109,440.52] being the amount of the summary judgment;
(b) The $276 K Issue shall not constitute a defence or set off to the liability claimed by CCC 396 in this trial;
(c) Complaints by the defendants as to actions taken or not taken by the Administrator, independent of the issues for trial as stated in paragraph (a) above, shall not constitute issues in or relevant evidence on this trial; and
(d) The defendants ceased paying common expenses in March, 2009.
The parties shall deliver affidavits of documents disclosing only the documents specific to this trial by February 15, 2012 pursuant to Rule 20.05(2)(a).
The plaintiff shall serve and file any expert report it relies on together with the Statement of Accounts by March 1, 2012.
The defendants shall serve any responding expert reports and a statement by each Defendant as to what items in the Statement of Account it disputes and why it disputes such items (“Defendants Notices of Opposition”) by March 15, 2012.
The plaintiff shall serve and file any reply by its expert by March 30, 2012.
The parties shall notify the other party in writing by March 15, 2012, which existing affidavits and transcripts of examination in this action they intend to rely on in this trial.
Any evidence previously filed on the summary judgment motion and transcripts from cross-examinations on affidavits filed on that motion, may be used at trial in the same manner as an examination for discovery, pursuant to Rule 20.05(2)(f).
The parties shall file any additional affidavits upon which they intend to rely, limited to the issues of this trial, by March 15, 2012.
The parties shall serve one another with an affidavit of each witness they intend to call at trial by April 1, 2012. Such affidavit will constitute the evidence in chief of such witness plus one hour examination in chief at trial.
Cross-examination on any affidavit may not exceed one day. Examinations for discovery of a party may not exceed two days.
Any examination for discovery of the parties and any cross-examination on any above existing or new affidavits must be completed by April 30, 2012.
Any undertakings from any examination are to be answered by May 15, 2012. Any motions related to either form of examination are to be argued before any judge or master by June 8, 2012.
A trial management conference shall be conducted before me on May 30, 2012 at 4:00 p.m.
The trial of this action before me shall commence on June 18, 2012, and is scheduled for five days.
[12] The decisions of Justice Kane were appealed and were heard expeditiously by the Court of Appeal. The appeal of the summary judgment was dismissed on April 13, 2012.
The first motion: seeking to remove Mr. Burdet
[13] The Plaintiff argues that Mr. Burdet should be removed as lawyer for the Defendants essentially for three reasons (which are reproduced directly from the Plaintiff’s factum):
(i) He is likely to be a material witness in the forthcoming trial of an issue to finally resolve this action. He is the person with the best evidence in support of his clients’ position. He has the best knowledge of the amounts paid to CCC396 by the Defendants, and he has full knowledge of the alleged oppressive conduct that, he says, absolves the Defendants of liability in this case. Finally, the evidence provided in other related proceedings has been provided by him personally, or his family on the basis of information provided by him.
(ii) He has a direct pecuniary interest that conflicts with his co-defendants. One of the issues to be resolved is the apportionment of liability among the Defendants. Claude-Alain Burdet obviously has a conflict of interest: he cannot reasonably be expected to advocate that he should pay more than his co-Defendants.
(iii) His non-pecuniary interest in this case precludes him from acting as an advocate. Claude-Alain Burdet is personally and emotionally involved in this case. A court is entitled to a certain amount of emotional detachment and reasoned analysis from the advocates who appear before it. This case is not about Claude-Alain Burdet representing his clients; it is about his own personal vindication. His personal involvement in this case precludes him from objectively and fairly fulfilling his role as advocate.
[14] The Plaintiff argues that the bulk of the evidence for the upcoming June trial will concern the first and third issues identified by Justice Kane in his trial scheduling endorsement. The Plaintiff argues that the evidence presented to date in this action and in the many other ongoing actions between the Majority and Minority Owners came either directly from Mr. Burdet or indirectly from family members based upon information provided by Mr. Burdet. The Plaintiff provided a chart, which is reproduced below:
Allegation in Statements of Defence (SOD)
Evidence Provided
SOD paras. 20, 23: The defendants further state that the plaintiff’s allegations of arrears are based on accounts which reflect CCC 396’s own administrative deficiencies, and do not reflect insufficiency of the defendants’ contributions to common expenses.
Supplementary Affidavit of CAB sworn May 2, 2006: “The reports by Marcil Lavallée and CMG …contain serious irregularities and falsehoods, according to my personal knowledge, clear documentary evidence and the professional opinion and first hand knowledge of other affiants.”
Motion Record Tab E, p. 40. , para. 200
SOD para 7: The defendants state that breaches of [Condominium Act] by the plaintiff are the root cause of the purported arrears and liens and that CCC 396 is attempting to unjustly profit from its own wrongs.
Affidavit of CAB sworn April 27, 2005: “La gestion de la CCC396 ne respecte pas, depuis avril 2002, les dispositions pertinentes de la Loi sur les condominiums, et fait preuve de discrimination contre les propriétaires autres que les requérants.”
Motion Record Tab F, p. 4., para. 26
SOD para 8(d): “corporate documents, books and financial records have not been disclosed and cannot be freely accessed.”
Affidavit of CAB sworn April 27, 2005: “Le gestionnaire choisi par les requérants refuse de communiquer aux autres propriétaires toute information relative à la CCC396, malgré qu’il ait été plusieurs fois mis en demeure de ce faire.”
Motion Record Tab F, p. 3. , para. 16
SOD para 8(e): “the defendants are unit owners of CCC396, who have not been informed nor consulted, concerning major financial decisions taken by the condominium”
Affidavit of CAB sworn April 27, 2005: “Depuis avril 2002, les requérants et le gestionnaire qu’ils ont mis en place, ne respectent pas les droits légitimes des autres propriétaires de la CCC396, y compris ceux de la fiducie intimée.”
Motion Record Tab F, p. 4. , para. 25
[15] Further, the Plaintiff alleges that the counterclaim rests on an allegation that CCC 396 has acted oppressively towards the Burdet family and that in previous motions Mr. Burdet has sworn that he personally believes that CCC 396 has acted oppressively and provided evidence in support of that accusation. The Plaintiff makes reference to the following affidavits filed in other proceedings:
Affidavit of CAB sworn May 2, 2006 - Motion Record Tab E, p. 40, paras. 201-202
Affidavit of CAB sworn May 12, 2006 - Motion Record Tab J, p. 2, para. 9
Affidavit of CAB sworn November 16, 2005 - Motion Record Tab G, p. 8. para.36
[16] The Plaintiff points out that more recently, in responding to motions heard by Justice Kane, Mr. Burdet has had members of his immediate family (his son, Luc Burdet, and his wife or former wife, Janet Burdet neé Struss) swear affidavits. The Plaintiff alleges that those affidavits are either a compilation of Mr. Burdet’s previous affidavits (as in the affidavit of Janet Struss sworn May 30, 2011) or that they are based upon information provided by Mr. Burdet. Further, the Plaintiff alleges that during the cross-examination of his son, Luc Burdet, on an affidavit, Mr. Burdet had to interrupt the cross-examination to provide evidence himself.
[17] The Plaintiff argues that it cannot get a fair trial if Mr. Burdet is the lawyer for all the Defendants. It alleges that, given the evidence required at trial and the pre-trial procedure ordered by Justice Kane, it cannot be fair to the Plaintiff if Mr. Burdet is permitted to cross-examine the Plaintiff’s witnesses and re-examine the Plaintiff’s witnesses prior to trial as per the timetable in place for the upcoming trial. The Plaintiff argues that the resolution of this issue cannot be left to the trial judge to decide if and when it arises because of the pre-trial timetable requiring examination for discovery and cross-examination on affidavits prior to trial. Further, the Plaintiff argues that Mr. Burdet may have interests adverse to the other Defendants, including financial interests and risks, but that as lawyer for himself personally and as well for all other Defendants he may want to protect his interests over those of the other Defendants. Even if he does not file any affidavits, he may still be called at trial by either the Defendants or the Plaintiff, which would give rise to conflict mid-trial and might in any event delay the trial.
[18] In response to this motion the Defendants argue that: the motion is tactical and brought too late considering the upcoming trial; the Majority of the Burdet Group is one unit or one group that was described by the Defendants as monolithic with no adverse interests; the trial will deal primarily with accounting evidence over amounts owed; Mr. Burdet has not delivered any affidavit for the upcoming trial and, in all likelihood, he will not deliver any (an undertaking that he will not was not given as the Defendants indicated that it would all depend on the content of the Plaintiff’s affidavit); if a subpoena is served by the Plaintiff to examine Mr. Burdet at trial it will be opposed by the Defendants on the basis that others could give such evidence; the Defendants have spent significant sums on legal expenses and, it would be unfair that they be required to start with another lawyer.
[19] As the beneficial owner of only one unit, the Defendants argue that Mr. Burdet’ financial risk is minimal and not the source of any conflict within the Majority Owners. The Defendants argue that although Mr. Fine participated in the motions before Justice Kane and will argue the March appeal, it would be unfair for them to lose their lawyer as it would likely delay the trial and result in unnecessary expenses for the Defendants. Further, since the Condominium Act governs the relationship between unit holders, there is no conflicts between the Majority Owners as their rights and liability, as between the individual owners, will flow from the provisions of the Condominium Act. They argue that if Mr. Burdet needs to testify at trial to address the $296,000 issue, as they claim it will be relevant to the validity of the registered liens, then the trial judge can adequately address this such that the Plaintiff’s motion is both premature and tactical to postpone the trial and avoid the timeline ordered by Justice Kane. The Defendants would rather that this issue be left to the trial judge.
The second motion: seeking to remove Nelligan
[20] The Defendants’ motion to remove Nelligan as lawyers for the Plaintiff is not brought on typical grounds, including relevant confidential information or duty of loyalty owed to current clients. As indicated in their factum, the Defendants allege:
i. CCC 396 has not retained, nor instructed Nelligan as required to comply with the Condominium Act;
ii. Lawyers of the Nelligan firm have conducted themselves in such a way that they have become part of the litigation, having signed several purportedly determinative affidavits, and generated and produced in these proceedings critical evidence and are thus necessary witnesses.
[21] These arguments of conflicts against Nelligan are tied to the Defendants’ allegations of oppressive conduct by CCC 396, which they make in their counterclaim (in this action) and, as well, in other ongoing proceedings, as outlined in the endorsements of Justice Kane referred to above. The Defendants make a number of allegations in their factum, which include that: CCC 396 selectively enforced condominium liens against unit owners; CCC 396 targeted the Majority Owners; this action was started without the approval of the Board of CCC 396 contrary to ss. 97(4) of the Condominium Act; the legal fees charged by Nelligan are of such magnitude to constitute a contract for a substantial change in the assets of CCC 396, which under ss. 97(4) requires approval of the Board; lawyers and staff of Nelligan have filed affidavits relating to the condominium liens and amounts owing; and lawyers of Nelligan have acted and continue to act for Domicile Developments Inc., one of the Minority Owners, resulting in a conflict. They argue that all of this conflicts with Nelligan’s role as an officer of the Court to act fairly to all owners when acting for a manager appointed under the 2002 Order and that Nelligan acted in a manner that is contrary to s. 135 of the Condominium Act.
[22] The Plaintiff argues that Nelligan were and are instructed by CMG as per the terms of the 2002 Order of Justice Lalonde. The 2002 Order provides for no Board meeting without court order, and that the Order establishes CMG as the directing mind of CCC 396, subject to further order of the Court. The Plaintiff argues that the chart outlining the amounts owning by the Defendants prepared by a lawyer of Nelligan, for the purpose of the motions before Justice Kane, are not records of first entry and that the records of first entry were filed with the Affidavit of Ian Davidson, on behalf of CCC 396. The Plaintiff argues that the chart is not evidence and that the affidavits filed by lawyers of Nelligan on the motion for summary judgment are not sufficient to create a conflict. Further, Nelligan’s representation of Domicile does not create a conflict as the power of sale action, as per the instructions of CCC 396, is between CCC 396 and the Majority Owners. The Plaintiff argues that the retainer of Nelligan is not “an addition, alteration or improvement to the common element...” and further that the 2002 Order prevents meetings or resolutions of CCC 396 without a further court order such that it has been legitimate for Nelligan to take instructions from CMG without a meeting of the owners, which would contravene the 2002 Order.
Law and analysis
[23] Both parties agreed, at the hearing of these motions, that this Court has jurisdiction to hear these motions and agreed that Justice Kane did not limit who could hear motions in this matter.
[24] It is well recognized that the courts have jurisdiction to remove from the record lawyers who have a conflict of interest and that “an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy”: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, at p. 1247.
[25] The facts in this case are very different from the facts in MacDonald Estate v. Martin. This case is not about the risk of relevant confidential information imparted by a client to a lawyer being used later against the client or former client in another matter by the lawyer. None of the parties make any such allegation against the other. As a result, the very specific test applying to confidential information, outlined in MacDonald Estate v. Martin, is not applicable to the circumstances of this case.
[26] Rule 2.04 of the Rules of Professional Conduct of the Law Society of Upper Canada deals with the avoidance of conflicts of interest. Paragraph 1 provides: “ conflict of interest’ or a ‘conflicting interest’ means an interest (a) that would be likely to affect adversely a lawyer's judgment on behalf of, or loyalty to, a client or prospective client, or (b) that a lawyer might be prompted to prefer to the interests of a client or prospective client.”
[27] Paragraph 2 provides that “a lawyer shall not act or continue to act in a matter when 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”. The commentary to that rule makes it clear that factors relating to the circumstances of each case need to be considered, including: the availability of another lawyer of comparable expertise and experience; the extra cost, delay and inconvenience involved; a new lawyer’s unfamiliarity with the client's affairs; and, occasionally, that “each client’s case may gather strength from joint representation”.
[28] Rule 4.02 addresses the lawyer being both witness and advocate in the same proceeding:
4.02 THE LAWYER AS WITNESS
Submission of Affidavit
4.02 (1) Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not submit his or her own affidavit to the tribunal.
Submission of Testimony
(2) Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted.
Commentary
A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the advocate's right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.
[29] In a recent decision, Master McAfee reviews the factors to consider when assessing whether a lawyer should be removed on the basis that the lawyer will also be a witness: see Karas v. Ontario 2011 ONSC 5181, para. 30:
When considering the removal of a lawyer from the record on the basis that the lawyer will also be a witness, the court adopts a flexible approach and considers each case on its merits. The Divisional court in Essa (Township) v. Guergis; Membery v. Hill, 1993 CanLII 8756 (ON SCDC), [1993] O.J. No. 2581 (Div. Ct.) at para. 48, set out a number of factors which should be considered on a motion to remove a lawyer on the ground that the lawyer will be a witness at trial. The factors include:
-the stage of the proceedings
-the likelihood that the witness will be called;
-the good faith (or otherwise) of the party making the application;
-the significance of the evidence to be led;
-the impact of removal counsel on the party's right to be represented by counsel of choice;
-whether the trial is by judge or jury;
-the likelihood of a real conflict arising or that the evidence will be "tainted";
-who will call the witness if, for example, there is a probability that counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising;
-the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.
[30] The Plaintiff relies in part on affidavits sworn in 2005 and 2006, which were filed in other actions between these parties, to support its argument that the bulk of the evidence comes directly or indirectly from Mr. Burdet. I note that these affidavits relate primarily to issues relevant to the Defendants’ counterclaim. Further, considering the date of these affidavits, the Plaintiff could have brought this motion at an earlier stage. This motion was served in December 2011. Being brought essentially on the eve of trial, it leads one to question whether this motion is tactical.
[31] Certainty that Mr. Burdet will or will not be called as a witness is not required: see Karas at para. 34. The likelihood that he will be called is one of the factors to consider. In this case, it is clear that Mr. Burdet, as a party, knows information relevant to the issues to be addressed at the June trial. It is also clear on the evidence that, as a party, he knows information relevant to the issues to be decided after the June trial (the latter being those issues not part of the issues identified for the June trial by Justice Kane). This information, known by Mr. Burdet, is not confidential information originating from the Plaintiff but factual information learned from his ongoing role as one of the condominium unit owner. However, because of the limited issues to be addressed and of how the evidence has been ordered to be presented at the June trial, I believe, from my review of the evidence presented on this motion, that Mr. Burdet is unlikely to be a witness at the June trial.
[32] The June trial has been ordered to proceed in chief primarily upon the affidavits delivered by the parties on the motion for summary judgment and on other affidavits to be delivered as per the ordered timeline (see above, the relevant portions of the Endorsement on trial scheduling of Justice Kane). This is a distinction from other cases brought to the attention of the Court where the trial would proceed on all issues and not in part on affidavits. It limits the likelihood of Mr. Burdet being a witness at the June trial when none of the affidavits delivered by the Defendants are from Mr. Burdet.
[33] On the motion for summary judgment, the Defendants filed no affidavit sworn by Mr. Burdet. When this motion was argued, the Defendants did not expect to file any affidavit sworn by Mr. Burdet for the June trial. Consequently, the likelihood that he be a witness at the June trial is assessed as low. However, the likelihood that he be a witness at a subsequent time, primarily when the $296,000 issue is tried, is assessed as much more likely as it seems that he has most of the more historical information relevant this issue and the oppression issue.
[34] While I appreciate that some of the information relevant to the validity of the registered liens and notices of sale might be comingled with some of the information relevant to the $296,000 issue, the affidavits filed by the Defendants are by affiants other than Mr. Burdet. In the event that a responding affidavit is sworn by Mr. Burdet prior to the June trial or in the event that the Plaintiff might seek to call Mr. Burdet as a witness at the June trial (as the Plaintiff have argued on this motion), this and any issue arising from any potentially unfair cross-examination by the Defendants can be addressed by the trial judge.
[35] Again, the circumstances of this case are quite specific. The issues relevant to the June trial are clearly defined by Justice Kane and are addressed for the Defendants by affidavits sworn by affiants other than Mr. Burdet. The historical information pre-dating 2001 is much more relevant to issues relevant to the Defendants’ counterclaim, which are specifically excluded from the June trial. For these issues, which are to be addressed only after the June trial, the historical knowledge of Mr. Burdet makes him a much more likely witness.
[36] This motion could be seen as being brought, at least in part, for tactical reasons. It is brought on the eve of trial when the facts relevant to the motion have been known for some time.
[37] If granted, it would impact the Defendants and both parties’ ability to proceed with the June trial and result in costs thrown away and other increased costs to the Defendants in particular. The likelihood that this motion is brought for tactical reasons is seen as stronger in relation to the upcoming June trial and as much less so for issues remaining to be decided after. The evidence of the Defendants is that they will incur significant legal expenses if they need to change counsel for the upcoming trial and that the upcoming trial might need to be adjourned. Again, this is different when one considers the issues remaining to be decided after the June trial.
[38] The June trial is by judge alone. It is proceeding on a very strict timeline and upon issues and evidence clearly defined by Justice Kane.
[39] I agree with the Defendants’ that the interests of Mr. Burdet on issues relevant to the June trial are generally in line with those of his co-defendants and that any conflicting financial interest will likely be sufficiently addressed, for purposes of this motion, by the provisions of the Condominium Act.
[40] This case can be distinguished from Karas. In this case, there is no issue of relevant confidential information or of acting against a former client. The facts in this case are also different from those in Ontario Realty Corp. v. P. Gabriele & Sons Ltd. 2006 CarswellOnt 6983. One of the differences is that, in the latter case, the information of the lawyer relevant to his or her potential role as a witness came from his role as lawyer whereas in this case most of the relevant historical information about which Mr. Burdet could testify originates from his role as a unit holder.
[41] The factors identified in Essa are factors to be considered. When I consider these factors, as well as the arguments raised by the Plaintiff, against the evidence presented on this motion and assess whether a reasonable person, with all of this knowledge about the situation, would conclude that the proper administration of justice requires the removal of Mr. Burdet as lawyer for the Defendants (see: Ontario Realty Corp. at para. 20), I arrive at the following bifurcated result:
a) Probably not with regards to the June 2012 trial;
b) Probably for issues remaining to be decided after the June trial.
[42] Considering the above factors and arguments of the Plaintiff, I am satisfied that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires the removal or disqualification of Mr. Burdet as lawyer of record for the Defendants who have pled to this action, except for himself personally, after the June trial for issues remaining to be decided thereafter. For the remaining issues, the evidence of Mr. Burdet will likely be critical, as some of that evidence pre-dates 2001 when his son became more involved. This is evident from a supplementary affidavit of Luc André Burdet, sworn February 22, 2012. In such circumstances, it would be unfair to allow him to act as lawyer for the other Defendants and in that role cross-examine the Plaintiff’s witnesses. Similarly, the financial interests of Mr. Burdet are more likely to be in conflict with those of the other Defendants on issues relevant to their counterclaim. Further, this motion loses most of its tactical traction for those issues remaining to be decided after the June trial.
[43] However, considering the factors and the arguments of the Plaintiff, I am satisfied that the same fair-minded, reasonably informed member of the public would come to a different result for the June 2012 trial. The Endorsement on trial scheduling distinguishes this case from most other decision as the issues and evidence for the June trial are limited and clearly defined, all of which impacts the factors to be considered. Further, the motion is brought on the eve of the June trial and could be seen as tactical. The evidence on the June trial will deal mostly with amounts owing to the Plaintiff. The affidavits filed by the Defendants, when these motions were heard, were not by Mr. Burdet, and he is not likely to be a witness. The facts relevant to the issues to be tried in June are generally from the period 2009 to date and, therefore, more within the knowledge of his son, Luc André Burdet. If the Plaintiff seeks to examine Mr. Burdet at the June trial (which despite the Plaintiff’s arguments at this motion I assess as unlikely) or should Mr. Burdet file an affidavit prior to it, then any such situation can effectively be addressed by the trial judge. In this regard, the Defendants are on notice to make alternate arrangements to be ready to proceed should Mr. Burdet be or be allowed to be a witness at the June trial, as such notice will likely be considered by the trial judge if and when assessing the necessity of any resulting adjournment. The June trial is by judge alone. There is no allegation of confidential information of the Plaintiff known by Mr. Burdet, such that the alleged mischief in this case, if Mr. Burdet is not a witness at the June trial, is primarily as between the Defendants. In this regard, the interests of the Defendants for the June trial are essentially in line and the Defendants’ respective obligations to the Plaintiff, for issues to be determined by the June trial, are likely governed by the provisions of the Condominium Act. Considering the alleged mischief to the Plaintiff, even if I came to a different result for the June trial, Mr. Burdet could, in any event, continue to act for himself and, as such, could cross-examine the Plaintiff’s witnesses on affidavits prior to trial and at the June trial, such that this alleged mischief or any mischief resulting from his alleged emotional involvement is best left to be addressed by the trial judge. When considering all of the factors, arguments and evidence presented, a fair-minded and reasonably informed person would conclude that the proper administration of justice does not require the removal of Mr. Burdet for the upcoming June trial.
[44] Concerning the second motion, seeking to remove Nelligan, I find, for purposes of this motion, that CMG instructed Nelligan to commence this action and the proceedings against the Defendants and that the arguments of alleged inappropriate conduct by lawyers at Nelligan attempt unsuccessfully to confuse issues relevant to a conflict motion with factual issues to be decided when the issues relevant to the Defendants’ counterclaim are eventually tried. Considering the oral submissions made by counsel and the voluminous material filed on this motion, I find that a fair-minded and reasonably informed member of the public would not conclude that the proper administration of justice requires the removal or disqualification of the lawyers for the Plaintiff. That motion is dismissed.
[45] The chart prepared by a lawyer of Nelligan was not evidence but rather an illustrative aid. I doubt that the lawyer who prepared that chart will be a compellable witness at the June trial as the evidence relating to the amounts owing by the Defendants originates not from the lawyer or the chart she prepared but from the information of CCC 396. Lawyers are regularly encouraged to prepare charts and illustrative aids to assist the Court on motions. As long as the lawyer is not the source of the information, these charts are not evidence but an aid and preparing such charts should not be discouraged by finding the lawyer in conflict for having done so. It is, however, recommended and prudent for lawyers attaching any such illustrative aids to do so in the factum and not in an affidavit.
[46] I doubt that Mr. Peart will be a compellable witness by the Defendants at any trial in this action, as alleged in the second supplementary affidavit of Luc André Burdet. I do not accept the allegations made in this supplementary affidavit as sufficient to create a conflict of interest on the part of Nelligan. Again, the Defendants are trying to confuse issues relating to their counterclaim with conflict issues. Similarly, I do not accept that Mr. Davidson’s past retainer for a principal of Domicile creates a disqualifying conflict of interest for Nelligan as I do not see a conflict between these retainers and Nelligan’s ability to act for the Plaintiff in this action.
[47] The affidavits of Nelligan filed in the motion for summary judgement dealt with the mailing of notices that liens would be registered or with information and belief information originating from CCC 396, none of which are sufficient to disqualify Nelligan in the circumstances of this action.
[48] Similarly, I find that any contravention of ss. 97 or 135 of the Condominium Act is more properly part of the oppression remedy sought by the Defendants and not sufficient ground to disqualify Nelligan in circumstances where the Defendants, since 2002, failed to seek any direction from this Court regarding the scope and application of the 2002 Order. Any such breach of ss. 97 and 135 is more properly related to their oppression claims and will be resolved when these issues are ultimately tried. It would no doubt have been preferable and much more prudent for CCC 396 and CMG to regularly seek directions from this Court regarding the application of the 2002 Order. However, for the Defendants to raise alleged breaches of s. 97 and 135 as ground for disqualify opposing counsel in response to the Plaintiff’s motion and on the eve of the June trial is seen as a tactical manoeuvre that should not be encouraged.
[49] The 2002 Order answers the arguments of the Defendants as these relate to the conduct of Nelligan in following instructions. Nelligan followed instructions that purported to follow the 2002 Order. Whether the Condominium Act was breached or not will be decided when the counterclaim is tried, and arguments that it was breached by the conduct of Nelligan are not sufficient to disqualify Nelligan when it followed instructions that purported to follow or apply the 2002 Order.
Disposition
[50] The Plaintiff’s motion is granted in part with an order to go disqualifying Mr. Burdet as lawyer of record for the Defendants who have pled to this action, except for himself personally, after the June 2012 trial for issues remaining to be decided after the June trial. Mr. Burdet may nonetheless, after the June trial, appear at any case conference as agent for any lawyer retained for the other Defendants. Mr. Burdet may remain as lawyer of record for the Defendants for the June 2012 trial, with any issue of conflict arising at the June trial to be addressed by the trial Judge, and he may remain as lawyer for the Defendants for any appeal of the June trial.
[51] The Defendants’ motion is dismissed.
[52] Regarding costs, the Plaintiff successfully opposed the Defendants’ motion and succeeded in part on its own motion. The Plaintiff should therefore be entitled to a reasonable portion of its partial indemnity costs. As the Defendants were successful in part in opposing the Plaintiff’s motion, I will reduce the Plaintiff’s partial indemnity costs for that motion. A lawyer for CMG attended at these motions and assisted the Plaintiff. The attendance of this lawyer was maybe useful to CMG or the Plaintiff but was not necessary such that no costs are allowed to CMG for this motion.
[53] Having considered the relevant factors and the written submissions on costs, the Defendants shall pay costs to the Plaintiff for these motions in the all inclusive amount of $12,500.00 ($8,000.00 for the Plaintiff’s motion and $4,500 for the Defendants’ motion).
Master Pierre E. Roger
Date: May 3, 2012