Zando v. Ali, 2015 ONSC 1884

COURT FILE NO.: 38357/01

DATE: 2015/03/23

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Iram Kareemi Zando (Plaintiff)

AND:

Dr. Sayed N. Ali, Dr. Richard Cheong, Dr. M. A. Rauf Khan and Sarnia General Hospital (Defendants)

BEFORE: Justice B.W. Miller

COUNSEL: David B. Williams, Allison M. Webster, for the plaintiff

Amandeep S. Dhillon, agent for the plaintiff

Nina Perfetto, counsel for the defendant Dr. Sayed N. Ali

Kurt K. Pereira, counsel for the defendants, Dr. Richard Cheong, Dr. M. A. Rauf Khan and Sarnia General Hospital

HEARD: March 20, 2015

ENDORSEMENT

[1] Plaintiff’s counsel, Harrison Pensa LLP, have moved for an order removing them as counsel of record on the grounds of an irreconcilable breakdown of the lawyer and client relationship. The timing is, on all accounts, unfortunate as the motion is brought three weeks prior to the trial of an action that was commenced nearly 15 years ago. David Williams has been counsel on this matter for Harrison Pensa LLP since the inception of the action. The plaintiff opposes the motion and asserts that Harrison Pensa LLP (and specifically Mr. Williams) has her complete confidence. The defendants take no position, other than to argue that they are strenuously opposed to an adjournment of the trial, which they fear to be the inevitable result if Harrison Pensa LLP are removed from the record.

The sealing order

[2] As a preliminary matter, the defendants argued that the affidavit of Emily Assini, which was sworn March 13, 2015 (the “Assini affidavit”) in support of Harrison Pensa’s motion and sealed by order of Justice A. Goodman dated March 17, 2015, be opened. After hearing arguments from all counsel and reading the Assini affidavit, I ruled orally that the sealing order should be continued. The contents of the affidavit in its entirety (with the exception of a few paragraphs setting out the chronology of the litigation) are protected by solicitor client privilege. I also order that the Affidavit of Iram Kareemi Zando, which was sworn March 18, 2015 in reply (the “Zando affidavit”), is to remain sealed on the same grounds.

[3] Counsel for the defendants then withdrew from the hearing so that the removal motion could be dealt with on the basis of the sealed affidavits, later rejoining to address the question of whether, were Harrison Pensa LLP were to be successful, the trial should be adjourned and on what terms.

The removal motion of Harrison Pensa LLP

[4] Harrison Pensa LLP seeks to be removed from the record, on the basis of the materials filed in the sealed Assini affidavit.

[5] 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 best 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.

[6] Is there justifiable cause for the termination of the relationship? Although it is disputed by Dr. Zando, through her agent Mr. Dhillon, it is apparent from the email correspondence between Dr. Zando and Mr. Williams and Ms. Webster (attached to the Assini affidavit) that Harrison Pensa LLP has lost the confidence of Dr. Zando. Serious allegations are made by Dr. Zando that Harrison Pensa LLP is putting its own interests ahead of hers, and questioning Harrison Pensa LLP’s competence, integrity, and professionalism in the carriage of this matter.

[7] In the Zando affidavit, Dr. Zando expressly denies that Harrison Pensa LLP has lost her confidence, and she argues that they ought to continue to act for her. Regardless, ‘(t)he test is not whether the client wishes for counsel to remain engaged but whether there has been such a loss of confidence that justifies the solicitor’s withdrawal.’ (Kovinich v. Kovinich, 58 C.P.C. (6th) 78, para. 41.). An objective reading of the correspondence attached to the Assini affidavit demonstrates a breakdown in the professional relationship between solicitor and client that justifies the withdrawal. It is not merely the allegations related to Harrison Pensa LLP’s professionalism and integrity that lead to this conclusion but that Dr. Zando is now filtering their advice to her through a third party, non-lawyer, whose advice she prioritizes over Harrison Pensa’s. Harrison Pensa clearly no longer has her confidence.

[8] Even in the later email (March 10, 2015) in which Dr. Zando insists that she did not intend to sever the solicitor-client relationship, she expressly maintains several of the accusations against Harrison Pensa’s competence, integrity, and professionalism.

[9] Although the loss of confidence would be sufficient to justify the order removing counsel, there is the added issue of a dispute over the nature of the retainer, particularly over whether Harrison Pensa LLP had agreed to act on a contingency basis.

[10] It is troubling to be asked to make such an order three weeks before trial, particularly the trial of an action that started 14 years ago and carries so many professional reputations in the balance. But the loss of confidence together with the dispute over the retainer justifies the withdrawal, even with the trial three weeks away. I note that in Kovinich v. Kovinich, trial was set to proceed in less than a month. Accordingly, I grant the order that Harrison Pensa LLP be removed as solicitors of record in this action.

The motion for an adjournment

[11] With defence counsel re-attending, and Harrison Pensa LLP excused, I requested submissions from Mr. Dhillon and defence counsel on the question of what was to be done should I make the removal order.

[12] The position of counsel for the defendants is clear. After 14 years, they desperately wish the trial to proceed as expeditiously as possible. Mr. Dhillon, as agent for Dr. Zando, equally impressed on the court the plaintiff’s desire to move to trial. All parties agreed, however, that should the removal of Harrison Pensa LLP be ordered, an adjournment would be necessary. The only question is to when and on what terms.

[13] Mr. Dhillon is not yet in a position to commit to becoming counsel of record. Although it is his intention to seek those instructions, he has not yet reviewed the file and it will take him some time to do so. Counsel for the defendants do not want to press for a schedule that will only be counterproductive because it cannot be met and will lead to further applications for adjournments.

[14] Having canvassed dates with counsel for the defendants and with Mr. Dhillon, it appears that all parties are agreeable to set the matter down for trial in the late autumn of 2015. I leave it to counsel to arrange a date through the office of the Trial Coordinator. Defence counsel are directed to canvass the availability of Mr. Dhillon and Dr. Zando, but if Mr. Dhillon is not in a position to become solicitor of record by March 23, 2015, defence counsel may obtain a trial date for the late autumn 2015 without regard to his schedule. The date will be peremptory on Dr. Zando.

[15] The adjournment is also subject to the condition that no further expert reports are to be filed and no further examinations are to take place.

[16] Given the upcoming trial date, I make no order with respect to costs of trial preparation thrown away, and leave those costs to the discretion of the trial judge.

[17] With respect to the costs of the motion, I received a bill of costs and submissions from counsel for each of the defendants and submissions from Mr. Dhillon. There were submissions that Harrison Pensa LLP should bear at least some of the costs of the motion. As Harrison Pensa LLP was excused prior to these submissions being made, I did not have the benefit of their reply, and invite them to file brief submissions (no more than three pages) on the costs of the motion no later than March 31, 2015.

[18] I order that the trial date commencing April 13, 2015 be vacated.

Justice B. W. Miller”

Justice B.W. Miller

Date: March 23, 2015