CITATION: Levico v. Rona, 2015 ONSC 2077
COURT FILE NO.: CV-12-00463529
DATE HEARD: 20150312
ENDORSEMENT RELEASED: 20150401
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Levico Lighting Inc. v. Rona Corporation and Ronald G. Chapman
BEFORE: Master B. McAfee
COUNSEL: Julia Wilkes for the Moving Party, the Defendant Ronald G. Chapman
Jeffrey Radnoff for the Responding Party, the Plaintiff Levico Lighting Inc.
REASONS FOR DECISION
[1] The defendant Ronald G. Chapman (Chapman) brings a motion for an order removing Jeffrey Radnoff (Radnoff) as lawyer of record for the plaintiff Levico Lighting Inc. (Levico). Levico opposes the motion. The defendant Rona Corporation (Rona) takes no position on the motion.
[2] Levico brings a cross-motion for an order for a timetable.
Removal Motion
[3] Chapman argues that Radnoff is in a conflict of interest and is a potential witness.
[4] Levico argues that Chapman has not satisfied his onus. Levico also argues that the motion is premature.
[5] No evidence was filed by any party on this motion. In support of his position on the motion, Chapman relies on the pleadings in the within action and a notice of change of lawyer dated December 20, 2010 filed in Royal Bank of Canada v. MGM Lighting (2005) Inc., court file no. CV-08-7648-00CL.
[6] As stated in Re Kaiser, 2011 CarswellOnt 12822 (C.A.) at para 21,
As the motion judge properly noted, “A litigant should not be deprived of counsel of its choice without good cause. See MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235 (S.C.C.).” For this reason, Canadian courts exercise the highest level of restraint before interfering with a party’s choice of counsel. Where such discretionary, equitable relief is invoked, there must be a possibility of real mischief should a removal order be refused. The test is whether a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice: see for example, MacDonald Estate; Zawadzki v. Matthews Group Ltd. (1998), 18 C.P.C. (4th) 373 (Ont.Gen.Div.); Colville-Reeves v. Canadian Home Publishers Inc. (2002), 111 A.C.W.S. (3d) 1202 (Ont. S.C.J. [Commercial List]) [Colville-Reeves v. Canadian Home Publishers Inc. (2002), 2002 CarswellOnt 546 (Ont. S.C.J. [Commercial List])]; Lautec Properties Inc. v. Barzel Windsor (1984) Inc. (2002), 26 C.P.C. (5th) 131 (Ont. S.C.J. [Commercial List]).
[7] I am not satisfied that there is a conflict of interest.
[8] This action was commenced on September 14, 2012. As set out in the statement of claim, Levico alleges that it delivered goods to Rona and invoiced Rona in the amount of $131,099.67 of which $80,629.32 has been paid. In this action, Levico claims against Rona for the balance in the amount of $50,470.53. If it is found that Levico did not commence an action against Rona in time, Levico claims against its former lawyer Chapman.
[9] Chapman defends this action on the basis that he was not retained to commence an action against Rona for the balance and on the basis that any applicable limitation period has not expired. Chapman also denies any negligence and or breach of contract if Levico did not commence an action against Rona within the applicable limitation period.
[10] On this motion, Chapman argues that Radnoff was acting for Levico at the earliest point in time that the limitation period could have expired, being February 2011. Chapman argues that Radnoff would be exposed to liability if the limitation period was missed.
[11] Chapman’s position on the motion differs from Chapman’s pleading. At paragraph 15 of his amended statement of defence Chapman pleads that Rona made a partial payment of $80,629.32 “…which served to acknowledge the debt and reset the limitations period, in accordance with section 13 of the Limitations Act. Levico received this amount after it terminated its retainer with Chapman on or about December 20, 2010, and therefore, Levico’s claims against Rona are timely.”
[12] There is no evidence of when Levico retained Radnoff for the purpose of recovery of balance. There is no pleading concerning Radnoff.
[13] In light of the pleadings before me and no evidence having been filed, on the basis of the record before me I am not satisfied that there is a conflict of interest.
[14] I am also not satisfied that Radnoff will be a potential witness.
[15] The applicable law to be considered on a motion to remove a lawyer of record who may be a witness at trial was summarized by Master Glustein, as he then was, in Mazinani v. Bindoo, 2013 CarswellOnt 11014 (Ont. Master) at paragraph 60. Paragraph 61 of Mazinani cites the decision of the Divisional Court in Essa (Township) v. Guergis, 1993 8756 (ON SCDC), 1993 CarswellOnt 473 (Div.Ct.). In Essa, Justice O’Brien states that the court should take a flexible approach and consider each case on its merits, having regard to a variety of factors. I have considered those factors.
[16] The action is at an early stage. Pleadings have been exchanged. In the circumstances of this particular case, the motion is premature. I am not satisfied that there is any likelihood that Radnoff will be called or of the significance of the evidence to be called on the basis of the limited record before me. The record before me does not satisfy me that the right to be represented by counsel of one’s choice would be outweighed by the administration of justice being detrimentally affected. This is a simplified procedure, non-jury case. The record before me does not satisfy me of a likelihood of a real conflict arising or that the evidence will be “tainted.” There is no evidence of who will call the witness. On the motion Chapman submitted that Chapman would call Radnoff as a witness. The record before me does not satisfy me that Radnoff is a likely witness for Chapman. Radnoff is counsel to Levico.
[17] I am not satisfied that Radnoff ought to be removed from the record on the basis that he will be a potential witness.
[18] In Essa, Justice O’Brien states at paragraph 43, “…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.”
[19] In my view, this is not a clear case. I am not satisfied that a fair-minded and reasonably informed member of the public would conclude that Radnoff’s removal is necessary for the proper administration of justice.
[20] The statement of Justice Nordheimer in Zesta Engineering Ltd. v. Cloutier, 2000 CarswellOnt 1065 (Ont. S.C.J.) at paragraph 26 is applicable in the circumstances of this motion, “…I believe it is premature to conclude that Mr. Eastman should be prohibited from continuing to act in his role as co-counsel. … In the end result, I believe that this issue should be left to be renewed, if necessary, at a later date when the factual foundation for seeking such relief becomes more apparent than I find it to be at this time.”
[21] The motion to remove Radnoff as lawyer of record for the plaintiff is dismissed without prejudice.
Cross-Motion
[22] In the event that the removal motion was not granted, all parties consent to the timetable set forth in the email from Chapman’s counsel dated March 5, 2015. An order shall go accordingly, subject to an extension of the dates to reflect the number of days that this decision was under reserve.
Costs
[23] In the event that the removal motion was not granted, Chapman did not take issue with Levico’s request for costs on a partial indemnity basis in the amount of $7,500.00 subject to a reduction of any costs sought that are associated with the cross-motion. It is the position of Chapman that the cross-motion was not necessary. Chapman was not agreeable to setting a timetable until the issue of the representation of Levico had been determined. Chapman’s position in this regard was reasonable. Chapman now consents to the timetable. I have reduced the costs sought by Levico by one hour. Accordingly, Chapman shall pay to Levico the sum of $7,200.00 within 30 days.
[24] At the return of the motion on March 12, 2015, Radnoff confirmed that no costs are sought against the Ministry.
Summary of Order
[25] Order to go as follows:
The removal motion is dismissed without prejudice;
The cross-motion is granted and the parties shall adhere to the following timetable:
(a) Discovery plan to be agreed to by May 4, 2015;
(b) Affidavits of documents together with Schedule A productions shall be exchanged by May 20, 2015;
(c) Discoveries shall be conducted by August 20, 2015;
- Costs are fixed in the all inclusive sum of $7,200.00, payable by Chapman to Levico within 30 days.
Master B. McAfee
DATE: April 1, 2015