COURT FILE AND PARTIES
COURT FILE NO.: 13-57506
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NASSIF MATTAR – Plaintiff v. HASSAN DAHNOUN - Defendant
BEFORE: Mr. Justice Douglas Belch
COUNSEL: John D. Dempster, for the Plaintiff
Hassan Dahnoun, Self-Represented
HEARD: November 21, 2013
ENDORSEMENT
[1] The defendant, Hassan Dahnoun, who is self-represented, requests an order removing John Dempster, the plaintiff’s counsel as solicitor of record. John Dempster opposes the motion and in turn asks the court to put this file under case management.
[2] For the reasons that follow the defendant’s motion is dismissed and Mr. Dempster’s request for case management is granted.
Background
[3] The defendant and the plaintiff, Nassif Mattar are described as partners and owners of two properties in Ottawa. Evidently, each property is registered in one of their names and that registered owner holds a 50% interest in trust for the other unregistered owner. In 2008 the defendant attempted to sell the property registered in his name and retained Kenneth Johnson as his real estate lawyer. The transaction was not completed and was followed by a Small Claims court action wherein the real estate agent sought commission for the aborted sale. The plaintiff has commenced an action against the defendant in an effort to realize his interest from a subsequent sale of the property. The documentation on this motion suggests this case will involve an accounting between the parties. John Dempster is the plaintiff’s counsel in this action.
[4] On this motion the court was advised the offices of Kenneth Johnson and John Dempster are located in the same small commercial condominium. Mr. Johnson’s office is on the ground floor; Mr. Dempster’s office is upstairs.
[5] The defendant gives a number of reasons for requesting Mr. Dempster’s removal as counsel including:
• The close proximity of the offices present an opportunity for Mr. Dempster to become privy to privileged solicitor/client information such as accounting and bookkeeping for the partnership between the plaintiff and defendant. Confidential information is easily transmitted between the two lawyers breaching rules of professional conduct.
• The defendant has expectations that his information about business affairs will be kept confidential.
• Solicitor/client privilege is a fundamental principle of Canadian justice. Above all else the integrity of the justice system must be maintained.
• Mr. Dempster has the onus to prove that shared information will not be used to prejudice the defendant’s case.
• Any reasonably informed person would believe that confidential information would be shared between these two counsel.
[6] Mr. Dempster contends that Kenneth Johnson was in these offices from 2002 two 2007 and a separate second-floor unit was still unfinished. In 2007 Mr. Dempster, a litigation lawyer practicing as a sole practitioner, renovated the second floor and moved his separate and independent law practice into that space and since 2007 only he has occupied the second floor. Both practices are completely separate from each other. Above the exterior door are separate signs advertising the sole law practice of each. The lawyers do not share letterhead; each has separate bank accounts for their practices at different banks. Each has a separate conflict check system, separate accounting and bookkeeping, and they do not have access to each other’s accounting, bookkeeping or banking information. They have their own separate phone numbers and fax numbers and separate fax machines. Neither receives the faxes sent to the others office. They have separate websites, photocopy machines, office equipment, on site file storage, and boardroom. They do not share staff. He points out that Mr. Johnson extends the courtesy of allowing his receptionist to answer Mr. Dempster’s phone for him as it rings with a different tone before going to Mr. Dempster’s independent voice mail, but he, Mr. Dempster, does not answer Mr. Johnson’s phone line. Mr. Johnson allows his receptionist to separate Mr. Dempster’s mail and Courier and put it in a folder for him at Mr. Johnson’s reception. Mr. Dempster does not receive Mr. Johnson’s mail or courier. Mr. Johnson allows his receptionist to greet Mr. Dempster’s clients and let them sit in Mr. Johnson’s reception area before they go upstairs to meet with Mr. Dempster, however, most of Mr. Dempster’s clients know to go directly upstairs to his office area and wait for him there. In 2008 Mr. Johnson represented the defendant as the sole vendor in a real estate transaction that did not close and has not represented the defendant since in any capacity. Mr. Dempster has never represented the defendant.
[7] It seems the plaintiff approached Mr. Johnson in either March or April 2013 with respect to the lawsuit that he wanted to bring against the defendant, but was told that Mr. Johnson was not a litigation lawyer and was referred upstairs to Mr. Dempster. Both counsel are aware of the duties imposed upon them by the rules of professional conduct and neither have discussed each other’s representation of the defendant or plaintiff with the other.
[8] The defendant was represented by Diane Aoun, a lawyer with another Ottawa law firm. Mr. Dempster acknowledges discussing mediation with her as the lawsuit between the plaintiff and defendant is subject to mandatory mediation. The defendant contends he was never told about mediation although it is interesting to note that the material filed on the motion reveals that after Mr. Dempster suggested the name of a mediator, the response from the defendant’s lawyer was “we” are content with that choice. One is left to wonder who the “we” refers to. Evidently, the defendant has discharged his lawyer and is now representing himself.
Analysis and Conclusion
[9] On the return of this motion an affidavit of Kenneth Johnson was filed and as required by the rules where Mr. Johnson does not possess personal knowledge he begins many of the paragraphs with “I am informed and verily believe.” This wording fuels the defendant’s suspicions that the two lawyers whose offices are in the same building have been discussing his case and presumably, confidential information. On the other hand, Mr. Dempster points out that many of those paragraphs simply outline the nature of these proceedings more or less as a recital of the events as they occur. It is unfortunate that the recitation is through an affidavit of Mr. Johnson as had the history been presented by Mr. Dempster or one of his staff it might have made the defendant more at ease. Indeed, in presenting a more complete picture the affidavit evidence possibly went beyond what was necessary. However, none of the information was of a confidential/privileged nature.
[10] The leading case in this area is a decision of the Supreme Court of Canada, MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235. In discussing the policy considerations and legal ethics the court was concerned with at least three competing values. “There is first of all 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] In presenting his motion the defendant has stressed the first concern of maintaining high standards and integrity.
[12] Mr. Dempster maintains the case at bar is far removed from the Martin situation and the subsequent changes to the rules of professional conduct. He submits that he and Kenneth Johnson have never practiced law together; this is not a case of maintaining Chinese walls within the same law firm. Secondly, he submits that he is Mr. Dempster not Mr. Johnson. There is no presumption here but even if there was it is a rebuttable presumption. Furthermore, he and Mr. Johnson have not practiced in association with one another, unless of course I find, that the courtesies provided by Mr. Johnson to Mr. Dempster in allowing the receptionist to receive his mail, clients, and sometimes forward a phone call constitute association. Again, he feels any presumption here is not only rebuttable but has been rebutted by the fact that these two lawyers have carried on separate practices of law. He also indicates that within Ottawa, many counsel representing opposing clients share the same office address.
[13] Taking into account all of the evidence in submissions I am satisfied that Kenneth Johnson and John Dempster are not within the same firm, never have been in the same law firm, do not practice in association with each other and there is no justification for removing Mr. Dempster as counsel of record for the plaintiff and so the court dismisses the defendant’s motion.
[14] On the other hand given the defendant is now self-represented and that at the best of times communications between a lawyer representing one side and a self-represented litigant are fraught with difficulty, this case would probably move forward somewhat easier if the file was case managed, and accordingly, I order the file to be case managed.
Costs
[15] Given my findings Mr. Dempster is entitled to costs. His claim, contained in a sealed envelope filed at the conclusion of the motion and opened after making my findings requested disbursements of $164.00 and HST of $21.32 on those disbursements while his fees ranged from $3,825 for solicitor/ client to substantial indemnity of $3442.50 and finally partial indemnity of $2,295, together with the appropriate HST depending upon the scale of costs. Considering that the defendant may have felt justified in continuing with his motion based upon the language used by Mr. Johnson in his affidavit, namely,: “I am informed,” which suggested to him the lawyers had been carrying on a dialogue as opposed to it really being the appropriate language for affidavits used on a motion, costs are fixed on a partial indemnity scale at $2,778.67 comprised of $2,295 for fees, HST on fees of $298.35, disbursements of $164, and HST on disbursements of $21.32.
Mr. Justice Douglas Belch
Date: November 22, 2013
COURT FILE NO.: 13-57506
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: NASSIF MATTAR
Plaintiff
AND
HASSAN DAHNOUN
Defendant
BEFORE: Mr. Justice Douglas Belch
COUNSEL: John D. Dempster, for the Plaintiff
Hassan Dahnoun, Self-Represented
ENDORSEMENT
Belch J.
Released: November 22, 2013