OTTAWA COURT FILE NO.: FC-15-1101

DATE: 2015/10/13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Suzanne Morin-Savard, Applicant

AND

Henry Rudy Savard, Respondent

BEFORE: Mr. Justice Kevin B. Phillips

COUNSEL:
Alexi Durgali, for the Applicant
Loreen Irvine, for the Respondent

HEARD AT OTTAWA: October 13, 2015

ENDORSEMENT

[1] This matter was put on the procedural motions list by the Applicant seeking to have the lawyer acting for the Respondent removed as counsel of record due to conflict of interest. It is said that because lawyer Loreen Irvine attended at the matrimonial home and had some contact with the Applicant, she is a potential witness and thus can no longer serve as advocate.

[2] The parties were last before the court on August 5, 2015. On that day, Justice Sheard ordered that the Respondent be given access to the matrimonial home within the ensuing two weeks to remove chattels listed in a schedule. The Order specified that the Respondent was to attend the home with one or more third parties. Furthermore, and very importantly, the Order made clear that the Applicant was not to be present when he was there (although she could have an agent supervise).

[3] Following the August 5, 2015 court attendance, counsel for the Applicant wrote to counsel for the Respondent attempting to put some restrictions around the Respondent’s ability to fully enter the matrimonial home. In particular, it was asserted that the Applicant would lock the door to a bedroom and the Respondent would not be allowed to enter or know what was being kept within it. Also, attempts were made by the Applicant to put restrictions around who the third parties could be who would be allowed to accompany the Respondent. At no time did the Respondent agree to any qualification on his right to enter the matrimonial home as set out in the August 5, 2015 Order. At no time did the Applicant seek to bring the matter back before the court to have the dispute about what restrictions, if any, should be put around the Order resolved.

[4] On August 19, 2015 the Respondent attended at the matrimonial home to remove his property with the help of some others. At some point, apparently faced with the locked door described above, he called his lawyer Loreen Irvine for advice. She decided to attend to advise him in person.

[5] The Applicant was covertly watching the Respondent’s attendance at the matrimonial home from across the street. When she saw Ms. Irvine arrive, the Applicant attended the home and confronted the lawyer, essentially demanding to know what she was doing there. While there is conflict in the affidavit evidence with respect to the nature and content of the conversation, I have little doubt that it was brusque.

[6] The Applicant now says that because of that contact between her and lawyer Irvine, Ms. Irvine must be removed as counsel on the case.

[7] I cannot agree with the Applicant.

[8] I read the August 5, 2015 Order as giving the Respondent the right to attend at the matrimonial home with any third party he wished to invite there to assist him. The only exception in that regard was with respect to the parties’ son. Accordingly, I find that the Respondent was perfectly within his rights to invite his lawyer to attend the home for whatever purpose, including to give him advice there presumably with respect to the practical implementation of the Order.

[9] I note also that the Order makes clear that while the Respondent and his invited third parties were at the home the Applicant was not supposed to be there, a term obviously included to keep the peace and keep things on the rails. In effect, therefore, the contact between the Applicant and Ms. Irvine occurred because the Applicant deliberately elected to contravene a simple and clear court Order with the specific intention of confronting Ms. Irvine whom she knew as her husband’s lawyer.

[10] This matter has been brought as a procedural motion. As such, the evidence before the court exists only in affidavit form. There is considerable disagreement in the affidavits with respect to the nature and content of the interaction between the Applicant and Ms. Irvine. I am unable to resolve this evidentiary conflict in this form of proceeding. Without being put into a position to decide exactly what was said, how and by whom, I am left to determine the matter on the facts upon which there is agreement. All I am prepared to act upon is the simple fact that there was some sort of contact between the Applicant and Ms. Irvine on August 19, 2015.

[11] I am unable to find any basis upon which any prejudice has been or will be suffered by the Applicant as a result of what happened here. I have not been pointed to any admissible evidence giving rise to any inference of any reasonable likelihood that the contact between the Applicant and Ms. Irvine will ever bear on any issue to be decided by the court. I am not persuaded that Ms. Irvine has realistically become a witness with respect to any potentially material issue. At this point, on the evidence as it stands, any suggestion in that regard is pure speculation.

[12] While I would say that it is generally ill-advised for any lawyer to deliberately put themselves in a position to have direct contact with another party to litigation, this is not really what happened here. The contact between Ms. Irvine and the Applicant came about because the Applicant attended an address she knew she was not supposed to attend for the specific purpose of initiating the contact she now complains about. In any event, the mere fact of contact between a lawyer and a party opposite does not in and of itself give rise to any presumption that the lawyer can no longer discharge her professional function. There is no evidence before this court which calls for the conclusion that the particular contact in this instance was such that Ms. Irvine’s ability to act as counsel is compromised.

[13] It is of significant importance that litigants be entitled to avail themselves of legal counsel of their choosing. The threshold to remove counsel from the record is accordingly a high one. By proceeding by way of a procedural motion, the Applicant has not put a proper evidentiary record before the court such that any prejudice to her interests, or those of the administration of justice, can be said to exist.

[14] The motion is denied.

[15] The Applicant has been unsuccessful. Costs are awarded against her in the amount of $750 payable to the Respondent within 30 days.

Mr. Justice Kevin B. Phillips

Date: October 13, 2015