SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 55854

DATE: 2013/12/20

RE: Flora Chan and Emil Chan (Plaintiffs)

• and -

Zienb Husni Abdo and Husni Abdo (Defendants)

BEFORE: Justice H. A. Rady

COUNSEL:
K. Newman, for the moving party, Cohen Highley

L. Abey, for the defendants

Ms. Chan, in person

HEARD: December 17, 2013

ENDORSEMENT

[1] This matter is scheduled to proceed to trial with a jury on April 7, 2014. The plaintiffs seek damages for injuries they allege were sustained by Ms. Chan in a motor vehicle accident on October 19, 2005. A claim was issued by Notice of Action on October 26, 2007. Mr. Arvai acted for the plaintiffs until 2010 when they filed a Notice of Intention to Act in Person in October of that year.

[2] The plaintiffs were self-represented until the fall of 2012 when Ms. Lee of Cohen Highley was retained. As a result of her retainer, the then scheduled trial date of October 29, 2012 was adjourned. This was the third adjournment of trial. The first trial date of December 5, 2011 was adjourned by Justice Hockin on December 2, 2011. The case was then scheduled to proceed to trial on February 20, 2012. I adjourned it to October 29, 2012, peremptory on the plaintiffs to permit them one last opportunity to marshall the evidence necessary for trial. Ms. Lee’s retainer was intervened and it was on this basis that the further adjournment was granted, the rationale being that Ms. Lee’s retainer would ensure an orderly and efficient trial. I ordered that Ms. Lee could not be removed from the record without court order.

[3] Ms. Lee now seeks to be removed as solicitor of record. The case was pre-tried earlier this month by Justice Leitch and Ms. Lee appeared on that occasion (in accordance with her obligations and Ms. Chan’s wishes as expressed in her affidavit filed on this motion) although this motion had been already delivered. The case was not resolved at the pre-trial.

[4] Mr. Abey appeared on the return of the motion. He properly took no position respecting the relief sought. However, he seeks to have the April trial date marked peremptory on the plaintiffs. Understandably, his client wishes the matter to be dealt with. It has been outstanding for almost a decade. The defendants are said to be ready for trial. Mr. Abey then withdrew from the hearing so that the substantive issues could be dealt with.

[5] I have read Ms. Lee’s affidavit of November 15, 2013 and that of Ms. Delmore-Clemens. I have also read Ms. Chan’s affidavit of November 21, 2013. I heard Ms. Newman’s submissions and those of Ms. Chan. I did not understand Ms. Chan to object to Ms. Lee being removed from the record.

[6] Rule 2.09 of the Law Society of Upper Canada’s Rules of Professional conduct provides as follows:

2.09(1) A lawyer shall not withdraw from representation of a client except for good cause and upon notice to the client appropriate in the circumstances.

Commentary

Although the client has the right to terminate the lawyer-client relationship lawyer does not enjoy the same freedom of action. Having undertaken the representation of a client, the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship.

No hard and fast rules can be laid down about what will constitute reasonable notice before withdrawal. Where the matter is covered by statutory provisions or rules of court, these will govern. In other situations, the governing principle is that the lawyer should protect the client’s interests to the beset of the lawyer’s ability and should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril.

(3) Subject to the rules about criminal proceedings and the direction of the tribunal, where, after reasonable notice, the client fails to provide funds on account of disbursements or fees, a lawyer may withdraw unless serious prejudice to the client would result.

[7] Rule 2.09 (7) outlines those circumstances in which withdrawal is mandatory, none of which apply here.

[8] R. v. Cunningham, provides a helpful discussion of the principles that guide the court’s exercise of discretion in deciding applications for withdrawal. Although it is a decision in a criminal proceeding, the same principles apply in the civil context. If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, the court should allow the withdrawal. If timing is an issue, the court is entitled to enquire into counsel’s reasons. In either the case of ethical reasons or non-payment of fees, the court must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege. If withdrawal is sought for an ethical reason, the court must grant withdrawal; if it is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel’s request if it determines, after weighing all the relevant factors, that allowing withdrawal would cause serious harm to the administration of justice.

[9] The court observed that “harm to the administration of justice recognizes that there are other persons affected by ongoing and prolonged criminal proceedings: complainants, witnesses, jurors and society at large”. The court also noted that refusing an application to withdraw is a coercive and conclusive order with respect to the lawyer. Those comments are equally apt to a civil jury case.

[10] It is apparent from the material that Ms. Lee’s retainer requirements have not been met. Ms. Chan is very concerned about and questions the expense that has been incurred to date. Given the circumstances of Ms. Lee’s retainer, she is not acting pursuant to a contingency agreement. Ms. Delmore Clemens’ affidavit outlines the anticipated expense which will be incurred in order to prepare for and attend at trial. It is not insignificant particularly given the number of anticipated expert witnesses. The firm has incurred substantial disbursements to date.

[11] The dispute over the account would not by itself dictate that Ms. Lee be removed as solicitor of record, particularly at this juncture with a trial date approaching in the spring. The prejudice to the plaintiffs is evident.

[12] However, Ms. Lee has deposed that Ms. Chan “has made allegations that her representation by Cohen Highley was conducted improperly”. Ms. Chan is said to have refused to accept the recommendations of her counsel and the medical professionals.

[13] In her material, Ms. Chan suggests that Ms. Lee has not acted appropriately to represent her interests. She questions Ms. Lee’s motivations. She has used the words “unethical” and “irrational” in her material to describe Ms. Lee. All of this persuades me that Ms. Chan has lost confidence in Ms. Lee, and that there has been an irretrievable breakdown in the solicitor and client relationship. Ms. Chan does not have confidence in Ms. Lee’s integrity, competence or opinion. In the circumstances, it is clear that Ms. Lee cannot continue to act and must be removed as solicitor of record.

[14] Before the order takes effect, however, I would direct Ms. Lee to provide the court with a list of witnesses to be called at trial and a proposed calendar for the presentation of evidence, as well as a brief outline of any pre-trial motions that are anticipated.

[15] Ms. Chan asked the court to permit her to negotiate directly with the defendant insurer without the involvement of counsel. I cannot make such an order. The defendants are represented by counsel as is their right.

[16] The trial must proceed as scheduled whether the plaintiffs are represented or not. It is therefore marked peremptory on the plaintiffs.

[17] I agree with the pre-trial judge that a trial management conference is essential. As a result, we will endeavour to identify the trial judge who will make the necessary arrangements to schedule it.

“Justice H. A. Rady”

Justice H. A. Rady

Date: December 20, 2013