SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-02-65332

DATE: 20130604

CORRIGENDA: 20130605

RE: Correen Barbe-Langevin, a minor by her Litigation Guardian Colleen Barbe and the said Colleen Barbe personally, Plaintiffs

AND:

Nathan Brasseur, Jason Nesbitt, David Britton, Margaret Britton, Lloyd Britton, and State Farm Mutual Automobile Insurance Company, Defendants

BEFORE: The Honourable Mr. Justice M. McKelvey

COUNSEL:
C. Kirk Boggs, Counsel to the law firm of Boland Howe, Solicitors for the Plaintiffs

Allan L. Rachlin, Counsel for the Defendant David Britton

Alexander Paul, Counsel to the Defendant Margaret Britton

HEARD: March 1, and April 2, 2013

REVISED ENDORSEMENT

The text of the original endorsement has been corrected with the text of corrigendum

(released June 5, 2013)

Introduction

[1] This action arises out of a snowmobile accident which occurred on December 9, 2000. On the day of the accident, the snowmobile was being driven by Nathan Brasseur, who was 13 years old at the time. Also riding as a passenger on the snowmobile was Correen Barbe-Langevin, who was 6 years old at the time. It is alleged that Nathan Brasseur lost control of the snowmobile and it rolled over. It is further alleged that as a result of the accident, Correen Barbe-Langevin suffered serious injuries, including a head injury and a serious injury to her left leg. Damages in the sum of $1,650,000.00 plus special damages, pre-judgment interest and costs are claimed in the action.

[2] The motion before me claims the following relief:

i. An order removing Boland Howe as lawyers of record for the Plaintiffs; and

ii. An order removing Colleen Barbe as litigation guardian for the plaintiff, Correen Barbe-Langevin.

[3] At the time this motion was argued a new litigation guardian had been appointed for Correen Barbe-Langevin. In addition, she turned 18 on September 12, 2012 and therefore no longer required a litigation guardian. This aspect of the relief sought is therefore moot. The only issue left before me is the motion to remove the plaintiff’s current counsel as the lawyers of record for the plaintiffs. This motion has been brought by the defendant, David Britton. None of the other defendants attended on the motion initially. On the second day of argument the motion was supported by the co-defendant Margaret Britton.

The parties to this action

[4] The following are the parties to this action:

a) Correen Barbe-Langevin is a plaintiff and sues for the injuries she sustained in the snowmobile accident;

b) Colleen Barbe is a plaintiff and mother of Correen Barbe-Langevin. She asserts a claim under the Family Law Act;

c) Nathan Brasseur is a defendant and is alleged to have been the driver of the snowmobile at the time of the accident. Initially he was defended by the Children’s Lawyer who acted as his litigation guardian. However, having reached the age of 18 an order was obtained on November 26, 2005 that the action against Mr. Brasseur would proceed without a litigation guardian. His statement of defence was subsequently struck out, having failed to attend at examination for discovery and subsequently he was noted in default by the plaintiffs;

d) Jason Nesbitt is a defendant and is alleged to be a co-owner of the snowmobile involved in the accident;

e) David Britton is a defendant. Initially the allegations against Mr. Britton related to his supervision of Nathan Brasseur and allowing Nathan Brasseur to operate the snowmobile. Subsequently the plaintiff’s claim was amended to allege in addition that he was an occupier of the premises where the accident occurred;

f) Margaret Britton is a defendant, and is alleged to be an occupier of the property where the accident occurred. She is also alleged to be a co-owner of the snowmobile. Allegations of negligence have also been advanced against Ms. Britton;

g) Lloyd Britton was named as a defendant in the action and alleged to be an occupier of the premises where the accident occurred. The plaintiff subsequently discontinued the action against Lloyd Britton based on evidence that Mr. Britton died prior to the accident in question;

h) State Farm Mutual Automobile Insurance Company is named as a defendant in the action. It is alleged that State Farm was the insurer of the plaintiff, Colleen Barbe, and provided coverage for accidents involving unidentified, uninsured or under-insured vehicles.

Position of the moving party in support of the motion

[5] In support of its position that the plaintiff’s solicitor of record should be removed, counsel for the defendant David Britton submits that the plaintiff’s solicitor has been in a conflict of interest situation between the two plaintiffs since commencement of this action. It is asserted that the interests of the mother are not aligned with her daughter, who is the principal plaintiff. In this regard it has been submitted that the mother materially contributed to the child’s injuries and is therefore adverse in interest to her daughter.

[6] It is also asserted that the plaintiff’s counsel has shown disregard to his client’s interests. In this regard the moving party refers to a number of situations which have occurred during the course of the litigation. These include a settlement offer which was made by State Farm which attached a $200,000.00 payment. This payment was put into the trust account of the plaintiff’s solicitor as opposed to being paid into court or returned to State Farm. In addition, the plaintiff’s solicitor allowed counterclaims against Colleen Barbe to go undefended, resulting in her being noted in default on the counterclaim brought by Margaret Britton. It is also asserted that the plaintiff’s solicitor should not have allowed Colleen Barbe to have acted as litigation guardian for her daughter in light of the serious allegations which were made against her in the action. Taking all of these circumstances into account, the moving party asserts that the proper administration of justice requires the removal of the plaintiff’s solicitor.

Chronology

[7] It is apparent that this action has languished for significant periods of time. The claim was issued in December of 2002. During argument I was advised that further examinations for discovery are contemplated as well as possibly the issuance of third party claims. As it does not appear that the parties are anywhere near being ready to proceed to trial, the action has been referred for consideration as to whether it should be case managed.

[8] As the chronology of events relating to the matters at issue on this motion is relevant, I have prepared the following chronology:

1. December 9, 2000. This is the date of the snowmobile accident;

2. December 21, 2001. On this date David Britton directed a letter to the plaintiff’s counsel. The thrust of this handwritten letter is that the injury to Correen was caused because Colleen Barbe refused to put a helmet on her daughter. He asserted that the driver’s vision was impaired because the passenger’s hair blinded the driver. He asserted that the accident was Colleen Barbe’s “fault and responsibility”;

3. December 6, 2002. The statement of claim was issued naming Correen Barbe-Langevin and Colleen Barbe as plaintiffs. Colleen Barbe acted as litigation guardian for Correen;

4. January 22, 2003. A statement of defence was delivered by counsel for Margaret Britton. This statement of defence included a counterclaim against Colleen Barbe, asserting that Colleen Barbe was negligent in allowing Correen to ride on the snowmobile with Nathan Brasseur and permitting Correen to ride on the snowmobile without a helmet;

5. January 27, 2003. On this date David Britton prepared another letter addressed to the plaintiff’s counsel in which he asserts that Colleen Barbe was responsible for supervising Correen and that Colleen refused to allow her daughter to wear a helmet;

6. September 15, 2003. On this date counsel for State Farm delivered a statement of defence which included a counterclaim against Colleen Barbe asserting that her negligence contributed to the child’s injuries;

7. July 29, 2004. On this date David Britton was noted in default by the plaintiffs as he had failed to deliver a defence in the action;

8. June 29, 2005. Counsel to the Children’s Lawyer delivered a statement of defence on behalf of Nathan Brasseur in the action. This defence also included a counterclaim against Colleen Barbe;

9. November 15, 2005. On this date counsel for the defendant Margaret Britton noted Colleen Barbe in default on the counterclaim included in her statement of defence. It is to be noted that the noting in default was preceded by a series of letters by counsel for Margaret Britton asking the plaintiff’s solicitor whether the counterclaim was going to be defended or not. In addition, on August 22, 2005 counsel for Margaret Britton advised of the intention to note Colleen Barbe in default if a defence was not delivered within 21 days from the date of the letter. No response was made to these letters and no defence was delivered. Further, there was no attempt to set aside the noting in default until April, 2011. The issue of the setting aside of the default is the subject of a separate motion which I am advised is scheduled to be heard on June 6, 2013.

10. June 29, 2011. State Farm delivered an offer of settlement for the sum of $200,000.00. They also attached a cheque in this amount as part of their offer. The sum of $200,000.00, was subsequently placed in the trust account of the plaintiff’s solicitor without any formal response to the offer;

11. July 18, 2011. On this date the plaintiffs issued an amended statement of claim to increase the prayer for relief in the action and to add an allegation against the defendant, David Britton, that he was liable as an occupier of the premises. Following this amendment counsel was appointed for the defendant David Britton;

12. October 2, 2011. Counsel for the defendant David Britton advised the plaintiff’s solicitor of its retainer;

13. March 29, 2012. Counsel for David Britton delivered a statement of defence in the action. Previously the plaintiff’s solicitor had agreed to the setting aside of the noting in default. In his covering letter of March 29, 2012 counsel for David Britton for the first time raised an issue about plaintiff’s counsel representing both Correen Barbe-Langevin and Colleen Barbe. He states in the letter,

It seems to me that your firm is in conflict representing both Correen Barbe-Langevin and Colleen Barbe. There is, as I understand it, a serious issue with respect to Colleen Barbe’s potential liability as the supervisory parent at the time of the accident. She ought not to have been the litigation guardian.

By copy of this letter to the Children’s Lawyer, I suggest that an alternate litigation guardian ought to be appointed. At this point your firm’s involvement has been so lengthy that I question whether in the face of this obvious conflict you ought to continue as lawyers of record for Correen Barbe-Langevin, but I leave that to the consideration of the Office of the Children’s Lawyer.

14. April 24, 2012. Plaintiff’s counsel delivers a defence to the counterclaim of the defendant David Britton;

15. May 25, 2012. This is the date of the motion record brought by the defendant David Britton to remove Boland Howe as the solicitors of record;

16. July 18, 2012. A notice of change of lawyer is delivered by Allan Rouben with respect to the counterclaims brought against Colleen Barbe in the action;

17. July 18, 2012. Also on this date the plaintiff’s solicitor arranges for the sum of $200,000.00 received from State Farm to be paid into court;

18. August 3, 2012. Steve Rastin is appointed as the new litigation guardian for Correen Barbe-Langevin;

19. September 12, 2012. Correen Barbe-Langevin turns 18 years of age;

20. February 13, 2013. Correen Barbe-Langevin swears an affidavit that she has received independent legal advice and has chosen to have Boland Howe continue to represent her. She also confirms that having received independent legal advice she does not wish to bring any action against her mother.

Test to remove a lawyer of record

[9] In their argument before me counsel advised that they have not been able to identify any specific case which is close to the factual circumstances of this case. A number of general principles have, however, been developed in the case law.

[10] The Supreme Court of Canada considered what constitutes a disqualifying conflict of interest in MacDonald Estate v. Martin 1990 32 (SCC), [1990] 3 S.C.R. 1235. At paragraph 13 the court notes that there are three competing values which must be considered,

In resolving this issue, the Court is concerned with at least three competing values. There is first the concern to maintain the high standards of the legal profession and the integrity of our system of justice. Furthermore, there is the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause. Finally, there is the desirability of permitting reasonable mobility in the legal profession.

[11] The Macdonald case dealt with a situation where the appellant’s solicitor was assisted by a junior member of his firm who later joined the law firm which represented the respondent in the action. In coming to its conclusion, the court held that the test to be applied is whether the public represented by a reasonably informed person would be satisfied that no use of confidential information would occur. The court also notes that in considering whether there was a disqualifying conflict of interest, the conclusion was predicated on the fact that the client does not consent to, but is objecting to the retainer which gives rise to the alleged conflict.

[12] The standard for removal of counsel was referenced again in the Divisional Court decision of Everingham v. Ontario (1992), 1992 7681 (ON SC), 8 O.R. (3d) 121. This case involved a patient in a mental hospital who was challenging the imposition of a social behaviour management program. He was interviewed by a solicitor from the Crown prior to his cross examination in the absence of his own counsel. The court found that in deciding whether the solicitor should be disqualified from continuing to act,

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.

[13] The court emphasized that the standard for removal of counsel is an objective standard, that of a reasonably informed member of the public.

[14] The most serious issue raised by the moving party is whether the plaintiff’s solicitor was in a situation where his two clients were in a conflict of interest. In my view there was at least a potential conflict between the position of Colleen Barbe and her daughter, Correen Barbe-Langevin early on in this litigation. The issue of supervision over Nathan Brasseur is clearly a live issue in this action. It is the subject of a number of allegations made against the defendants by the plaintiffs in their statement of claim as well as against the plaintiff Colleen Barbe in the various counterclaims. It is clear that Colleen Barbe was present on the property at the time of the incident. This was confirmed in the discovery of Ms. Barbe and would have been known to the plaintiff’s solicitor early on.

[15] In addition, it is apparent that the issue of why the child was not wearing a helmet is going to be a live issue in the action as well. This is based on the nature of the injuries sustained by the child, as well as the assertion by David Britton that the injuries were caused or contributed by the fact that the child was not wearing a helmet. At her examination for discovery Colleen Barbe acknowledges that she participated in the decision not to have her daughter wear a helmet. She suggested that the helmet she was offered was too big in size.

[16] In light of the information in the hands of the plaintiff’s counsel it should not have come as a surprise that the defendants asserted counterclaims against Colleen Barbe as part of their defences.

[17] Rule 7.01 provides that unless a court orders otherwise a proceeding commenced on behalf of a party under a disability shall be commenced by a litigation guardian. Rule 7.02 sets out the requirements for a litigation guardian. It states that no person except the Children’s Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff who is under a disability until the person has filed an affidavit in which the person, “states that he or she has no interest in the proceeding adverse to that of the person under disability”.

[18] There was information in the hands of the plaintiff’s solicitor which would have called into question the appropriateness of having Colleen Barbe act as the litigation guardian for the child prior to the commencement of the action. In any event, it should have been apparent early on in the litigation that Colleen Barbe potentially had an interest in the proceeding adverse to that of her child. It is apparent that Colleen Barbe was directly involved in the supervision of her child on the day of the incident, and further was directly involved in the decision not to have her daughter wear a helmet. Colleen Barbe had an interest in avoiding being added as a defendant in the action, defending the claims which were brought against her by the defendants and potentially to minimize the damages of her daughter. It is to be noted that the allegations made by the defendants against Ms. Barbe could not be considered frivolous in light of the plaintiff’s own allegations against the defendants for failing to properly supervise the child, and in light of Ms. Barbe’s participation in the decision not to have her daughter wear a helmet.

[19] As a party under a disability Correen Barbe-Langevin was not in a position to waive any conflict, and in fact would be bound by decisions made by her litigation guardian with respect to the conduct of the litigation.

[20] In these circumstances the plaintiff’s solicitor should have recognized the requirement to arrange for a new litigation guardian or alternatively moved to have this situation addressed by the court. In addition, steps should have been taken to arrange for independent representation of Colleen Barbe, especially in relation to the counterclaims which were asserted against her.

[21] There is no rational explanation which has been provided as to why the plaintiff’s solicitor allowed the counterclaims against Colleen Barbe to go into default. While new counsel has now been appointed to deal with the counterclaims it is apparent that no action was taken by the plaintiff’s solicitor to avoid default proceedings being taken, and further there was a delay in excess of five years in responding to this situation. This omission, however, does not appear to flow from any potential conflict between the plaintiffs, as no benefit accrued to Colleen Barbe as a result of this inaction. Instead, I am left to conclude that this reflected a lack of diligence and attention to the file by plaintiff’s counsel.

[22] With respect to the funds received from State Farm which were attached to their offer of June 29, 2011 the response of plaintiff’s counsel of putting the funds in their trust account is unusual. Any settlement of a claim on behalf of the minor plaintiff would have required court approval and no steps in this regard were taken. If the offer was going to be rejected one would normally expect that the funds would have been returned to State Farm. In the affidavit material of the responding parties it is indicated that at the time the funds were received it was anticipated that the trial of the action would proceed at the November, 2011 sittings in Newmarket. However, the trial was subsequently adjourned without any action being taken regarding the funds. It is further noted that neither State Farm nor any counsel raised any issue with respect to the cashing of the draft prior to the bringing of this motion. While the placing of the funds into the trust account of the plaintiff’s solicitor was unusual and may not have been in accordance with the Rules of Civil Procedure, I do not view this as flowing from any potential conflict. The funds were placed in a trust account controlled by the plaintiff’s counsel and there is no evidence to suggest that the mother or any unauthorized party gained any inappropriate access to the funds.

[23] Based on my review of the circumstances I am satisfied that there was a potential conflict of interest between the two plaintiffs, which was left unaddressed for a period of many years during the course of this litigation. I am also satisfied that in a number of serious respects plaintiff’s counsel has not been diligent or attentive in representing the interests of his clients. The question which must be addressed is whether this is sufficient to disqualify the plaintiff’s counsel from acting further and whether their firm should be removed as solicitors of record in the action.

[24] I have concluded that the circumstances before me do not justify the removal of the plaintiff’s solicitor for the following reasons:

1. The potential conflict of interest between the plaintiffs does not appear to directly affect any of the other parties to the lawsuit. This is not a case where the party bringing the motion alleges that their confidential information may have been disclosed to another party. In this case the issues raised with respect to the potential conflict of interest are a matter between Colleen Barbe and Correen Barbe-Langevin. Correen Barbe-Langevin is now capable of making her own decisions in the action and is no longer a party under a disability. She has received independent legal advice and has confirmed that she does not wish to take any action against her mother, and both she and her mother have confirmed that they wish the law firm of Boland Howe to continue to represent them.

In oral argument, counsel for the moving party was asked to identify the potential prejudice which might be suffered by his clients if plaintiff’s counsel remained on the record. Initially he was not able to point to any specific prejudice, but explained that this is not required under the case law. While I accept this as a correct statement of the law, it is, I believe, a significant factor and one which a reasonable person considering the situation would take into account.

Subsequently, counsel for the moving party suggested that the plaintiff’s counsel might gain access to information from the mother relating to liability or damage issues such as the failure to wear a helmet. However, on the record as it stands today neither of the plaintiffs have asserted a position which is contrary to the position of the other. This in my view is a very significant factor to take into account. It means that the two parties who would be potentially affected by any potential conflict have made a conscious and informed decision not to take a position in the action which is adverse to the other, and that any potential conflict has been waived by them.

2. Having waived any conflict both parties in question have expressed a desire to be represented by the same firm. As referred to above, the case law recognizes that a litigant should not be deprived of his or her choice of counsel without good cause. This is referenced in the Supreme Court of Canada decision in R. v. Neil 2002 SCC 70, [2002] 3 S.C.R. 631 where the court stated,

These competing interests are really aspects of protecting the integrity of the legal system. If a litigant could achieve an undeserved tactical advantage over the opposing party by bringing a disqualification motion or seeking other “ethical” relief using “the integrity of the administration of justice” merely as a flag of convenience, fairness of the process would be undermined. This, I think, is what worried the Newfoundland Court of Appeal in R. v. Parsons (1992), 1992 7131 (NL CA), 100 Nfld. & P.E.I.R. 260, where the accused was charged with the first degree murder of his mother. The Crown sought to remove defence counsel on the basis that he had previously acted for the father of the accused in an unrelated matrimonial matter, and might in future have to cross-examine the father at the son’s trial for murder. The accused and his father both obtained independent legal advice, after full disclosure of the relevant facts, and waived any conflict. The father also waived solicitor-client privilege. The court was satisfied there was no issue of confidential information. On these facts, the court concluded that “public confidence in the criminal justice system might well be undermined by interfering with the accused’s selection of the counsel of his choice”.

3. In civil law, as in criminal law, a party’s right to the counsel of their choice is an important right which should not be lightly interfered with. I conclude that a reasonable member of the public would expect there to be a compelling reason before removing a counsel who has been acting for the plaintiffs in litigation over a 10-year period.

4. While the decision of the plaintiff’s counsel to accept instructions from Colleen Barbe as litigation guardian was inappropriate in my view, that issue was addressed following service of the motion record through the appointment of a new litigation guardian. The fact that Correen Barbe-Langevin has now reached the age of majority and has the capacity to make decisions on her own behalf is, in my view, a very important factor to consider on this motion. There are also some mitigating factors in that no other party, including apparently the Children’s Lawyer who was acting for the defendant Nathan Brasseur, took issue with Colleen Barbe acting as the litigation guardian earlier on in the action.

5. While the response of the plaintiff’s solicitor in placing the settlement funds received from State Farm in his trust account was unusual, there is no evidence to support a conclusion that this was done to benefit either of the plaintiffs at the expense of the other. In fact, the evidence is clear that there was no misappropriation of the funds by any party. They have now been paid into court. There is also no evidence that State Farm took exception to the plaintiff’s solicitor placing the funds into his trust account.

6. There is no requirement for a plaintiff to sue all parties who may be potentially liable for the plaintiff’s claim. It is not for this court to compel Correen Barbe-Langevin to initiate a claim against her mother. This is a route available to her if she chooses to do so. As she only reached the age of majority in September of 2012, she had and continues to have the ability to add her mother as a defendant if she wishes to do so.

7. Mr. Rachlin points to the fact that Colleen Barbe may have a claim against her counsel if she is not successful in setting aside her noting in default on the counterclaim brought by Margaret Britton. While this may be true we do not know at the present time what the outcome or consequences of that motion will be. I accept the argument submitted by Mr. Boggs that the decision on this motion needs to be based on the status of the claim as it currently stands, and the court on this motion should not speculate on what the outcome will be. If the motion to set aside the default on the counterclaim is not successful there is the potential for there to be a conflict between Colleen Barbe and her counsel. This issue will need to be addressed based on the facts as they present themselves at that time.

8. The claim of Colleen Barbe as plaintiff is a Family Law Act claim, which is a derivative claim. With respect to that claim, Colleen Barbe’s interest as a plaintiff is aligned to that of her daughter.

9. While it appears clear that there have been instances where the plaintiff’s solicitor has not handled this file with the degree of diligence and attention one would expect, the consequences of this conduct are a matter to be addressed between counsel and his clients. In this case, the clients have both confirmed their desire to have the plaintiff’s counsel continue to represent them. In my view, a reasonable person in considering the situation would conclude that a counsel’s performance and the steps to be taken, if that performance is not found to be satisfactory, is properly addressed by the clients. It is not the court’s function to intervene generally in the solicitor-client relationship arising out of performance concerns.

10. There has been a significant delay in the bringing of this motion. Counsel for the moving party noted in their argument that they moved promptly following their retainer to bring this issue forward. While I accept their assertion in this regard it remains that David Britton has been a defendant in the action since it was commenced in December of 2002, and he did not take any steps to raise this issue prior to March of 2012. He was, in fact, noted in default in the action as of July 29, 2004 and did not participate in the action again until October 2011. I am concerned that after 10 years of litigation removal of the plaintiff’s solicitor at this point might entail undue hardship to the plaintiffs, who would be required to retain new counsel.

[25] For the above reasons I conclude that a fair-minded, reasonably informed member of the public would conclude in the circumstances of this case that the proper administration of justice does not require the removal of the plaintiff’s solicitor. There are certainly reasons to be concerned about the plaintiff’s solicitors’ management of the file. However, to a substantial degree, the concerns surrounding the potential conflict between the plaintiffs have been addressed through corrective steps which were taken following initiation of the motion. While it is true that the plaintiff’s solicitor appears to have ignored a potential conflict for a lengthy period of time during the litigation, I believe that a reasonable member of the public would conclude that in the circumstances of this case at the present time the plaintiff’s right to counsel should not be interfered with. For those reasons this motion is dismissed. The dismissal of this motion is without prejudice to the right of the defendants to bring a further motion, if there are changed circumstances which warrant intervention by the court.

Conclusion

[26] For the above reasons the motion to remove the plaintiff’s counsel as solicitor of record is dismissed. If counsel are not able to agree on costs then an appointment should be taken out within 30 days of the release of these reasons to address the issue of costs. Prior to the hearing of costs counsel are to deliver written briefs with respect to costs at least five days in advance of the hearing. If no steps are taken within 30 days of the release of these reasons to address the issue of costs, then there shall be no costs of this motion.

Justice M. McKelvey

Date: June 4, 2013

CORRIGENDA

1. Citation heading, second line, has been changed from “Barrie Court File No.: 65332/02” to “Court File No.: CV-02-65332”.