ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO: CV-11-433059
DATE: 20131219
B E T W E E N:
Harjit Singh Sidhu, Dustin Singh Sidhu and 2238585 Ontario Inc.
Plaintiffs
- and -
BarBurrito Restaurants Inc.
Defendant
Evan Shapiro & Ray Thapar,
for the Plaintiffs
Morris Cooper,
for the Defendant
HEARD: October 10, 2013
REASONS FOR DECISION
FIRESTONE J.:
[1] The Defendant, BarBurrito Restaurants Inc. (“BarBurrito”), brings a motion for an order removing Simmons Da Silva & Sinton LLP (“Simmons”) as solicitors of record for Plaintiffs.
The Parties
[2] The Plaintiffs, Harjit Singh Sidhu (“Harjit”), Dustin Singh Sidhu (“Dustin”), and 2238585 Ontario Inc. (“223”), were franchisees operating a BarBurrito franchise at 544 Yonge Street, Toronto, Ontario.
[3] The Defendant, BarBurrito, is the franchisor of BarBurrito Restaurants located throughout Ontario.
Factual Background
[4] Simmons was retained by the Plaintiffs to negotiate a franchise agreement with the Defendant.
[5] The parties entered into a franchise agreement on or about February 15, 2010.
[6] A Notice of Rescission was delivered by the Plaintiffs to the Defendant on or about February 1, 2011.
[7] The Plaintiffs commenced proceedings by way of Statement of Claim on August 17, 2011. The Plaintiffs seek declaratory relief entitling them to rescission of the franchise agreement based on inadequate disclosure by the franchisor as well as various rescission remedies pursuant to the Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3 (“the Act”).
[8] The Defendant denies the Plaintiffs’ allegations and pleads that proper disclosure pursuant to the Act was made to Harjit and his counsel at Simmons.
[9] Their action is in its early stages. Documentary discovery has not been completed and oral examinations for discovery have not taken place.
Position of the Parties
[10] The Defendant (moving party) argues that counsel from Simmons, who represented the Plaintiffs at the time the franchise agreement was formed, will be a necessary witness at trial. They argue that this is not a speculative possibility.
[11] The Plaintiffs (responding parties) argue that this motion should be dismissed because the Defendant has not met the heavy onus of establishing that counsel from Simmons is a necessary material witness to the action and further that this motion is premature because documentary discovery is not complete and oral examinations for discovery have not taken place.
Analysis
[12] In Essa (Township) v. Guergis (1993), 1993 8756 (ON SCDC), 15 O.R. (3d) 573 (Div. Ct.), O’Brien J. writing for the court stated as follows, at p. 582:
I believe courts should be reluctant to make what may be premature orders preventing solicitors from continuing to act. In view of the expense of litigation and the enormous waste of time and money and the substantial delay which can result from an order removing solicitors, courts should do so only in clear cases.
[13] I agree with the principles enunciated in Bank of Montreal v. Combra Furniture Ltd., 2008 21903 (Ont. S.C.), at paras. 35-36, that courts should remove a party’s solicitor of choice at a pre-trial stage only in the clearest of cases and that the rule requiring counsel to step down if they are to give evidence is less critical at the discovery stage.
[14] Based on the record before me, I agree with Plaintiffs’ counsel that this motion is premature at this time. Following documentary and oral discovery, it may very well turn out that it will be unnecessary to call Plaintiffs’ counsel as a witness based on the evidence obtained. If this is not the case, the Defendant can bring this very motion at that time.
[15] The point is that following such documentary and oral discovery the motion judge will be in a better position to make an informed and just decision regarding whether the Plaintiffs’ counsel of choice ought to be removed.
[16] In my view, the fact that the Defendant indicates at this stage of the litigation that they intend to call or in the alternative that it is exceedingly likely they will call Plaintiffs’ counsel as a witness is not sufficient to remove the Plaintiffs’ counsel at this early stage in the litigation. A client has a right to be represented by a counsel of his or her choice except in specific circumstances. This is not one of those circumstances.
Disposition
[17] The Defendant’s motion is, therefore, dismissed without prejudice to bring the same motion following documentary and oral discovery.
[18] I wish to thank counsel for both their written and oral submissions, which were exceptional and of great assistance to the court.
[19] If the parties cannot agree on costs, written submissions with a costs outline totaling no more than three pages may be submitted by the Plaintiffs by January 6, 2014 and by the Defendant by January 13, 2014.
FIRESTONE, J.
DATE: December 19, 2013
COURT FILE NO: CV-11-433059
DATE: 20131219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Harjit Singh Sidhu, Dustin Singh Sidhu and 2238585 Ontario Inc.
Plaintiffs
- and -
BarBurrito Restaurants Inc.
Defendant
REASONS FOR DECISION
FIRESTONE J.
Released: December 19, 2013