COURT FILE NO.: CV-14-514295
DATE HEARD: October 20, 2015
ENDORSEMENT RELEASED: December 10, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ELIZABETH FORSYTH v. BLUE ROCK WEALTH MANAGEMENT INC.
BEFORE: Master R. Dash
COUNSEL: Jonquille Pak, for the plaintiff Allison Taylor, for the defendant
REASONS FOR DECISION
[1] The plaintiff moves for an order removing Allison Taylor as the lawyer of record for the defendant on the basis that she will be a witness to material facts at trial and that communications from Ms. Taylor formed the factual foundation for the various causes of action set out in the statement of claim arising out of the termination her employment.
THE EVENTS UNDERLYING THE CLAIMS AND THE INVOLVEMENT OF MS. TAYLOR
[2] The plaintiff had been an employee of the defendant since April 2008. On January 23, 2012 she went on disability leave for a psychological illness, but was denied long term disability (“LTD”) benefits by the defendant’s group benefits carrier. She retained lawyer Aaron Waxman to represent her in her claim against the LTD insurer.
[3] On April 24, 2013 Mr. Waxman wrote to the defendant requesting a copy of the plaintiff’s complete employment records and enclosed the plaintiff’s authorization. The letter was answered by Allison Taylor, a lawyer with Stringer LLP, the external lawyers for the defendant who requested by letter of April 26 the reasons for the request. Mr Waxman responded and advised Ms. Taylor that he was retained on the LTD claim and required it before discoveries in the LTD action in order to better assess the claim and answer an expected undertaking. On August 8 Ms. Taylor sent Mr. Waxman the employment file.
[4] It appears there was no further correspondence until October 2013 when Ms. Taylor decided to involve Mr. Waxman in matters related to the plaintiff’s employment status. On October 30, 2013 she wrote to Mr. Waxman requesting “updated medical information to explain her restrictions and limitation and why she is unable to work.” She said they required a “prognosis as to whether it will ever be possible for your client to return to work for our client with or without accommodation.” She asked for a copy of the pleadings in the LTD action. (It appears to me Ms. Taylor was asking questions to determine if the plaintiff’s contract of employment was now frustrated.)
[5] On December 4, 2013 Dr. Cowen, the plaintiff’s psychotherapist sent an update to Neal Owen, the president of the defendant, informing him that the plaintiff remains unable to work and was attending psychotherapy sessions. Ms. Taylor then sent Mr. Waxman a letter by email on December 12, 2013 which is the subject of some controversy. She acknowledged that her client received the December 4 note but that it was wholly inadequate. She stated in one paragraph that “many individuals with such conditions continue to work, often with accommodation, even though they may also be attending psychotherapy sessions” (and her client was willing to accommodate the plaintiff in the workplace), yet in the next paragraph stated that “in our experience, psychological disabilities of this duration are frequently permanent in nature. If your client is so disabled that she will never be able to return to work, please advise us.”
[6] The controversial statement, and which is part of the material facts constituting the plaintiff’s claim for damages pursuant to the Human Rights Code (“HRC”), is found in the last paragraph of Ms. Taylor’s letter:
We understand that your client has a three year old child, and as a result of the lack of acceptance of her disability by the LTD insurer we have to be somewhat concerned that the rather vague nature of her leave is connected in some way to childcare. If explicit details are not forthcoming as to why she cannot work at all, even with accommodation...we will have to conclude that her absence from work is at best for mixed reasons, i.e. some medical and some personal in nature.
[7] The next letter from Ms. Taylor, which founds the claim for actual or constructive dismissal, is dated January 29, 2014 and sent to Mr. Waxman (although Mr. Waxman claims not to have received it until later). She stated that the plaintiff’s employment was “either frustrated as a result of her absence from work without any real likelihood of return, or alternatively that your client’s absence is not medically justified and therefore cause exists”. The next paragraph sets out the termination:
Without prejudice to our client’s taking the latter position in the appropriate circumstances, our client is terminating your client’s employment for frustration of contract effective immediately.
[8] On February 26, 2014 the plaintiff received from the defendant a copy of Ms. Taylor’s letter of Jan. 29 to Mr. Waxman together with a cheque for five weeks pay under the Employment Standards Act (“ESA”). After Mr. Waxman told Ms. Taylor he had not received all of her previous emails, Ms. Taylor sent him a fax dated March 4, 2014 in which she cast some doubt about whether the plaintiff was in fact terminated and whether she would be reinstated. She said:
Kindly have your client return the cheque to our client...and I will request that my client reinstate yours to her employment.
[9] On March 19 the plaintiff wrote directly to Ms. Taylor, enclosing the cheques representing ESA funds. The plaintiff stated: “I disagree that my employment contract has been frustrated; I understand that by returning such cheques, my employment is reinstated to medical-leave-of-absence status.” Ms. Taylor responded directly to the plaintiff (having been told that Mr. Waxman represented the plaintiff only on the LTD claim and not on the employment matters) on March 21, 2014. She said that reinstating the plaintiff to medical leave of absence status was not simply a function of returning the cheques, but of complying with her requests for a more cogent medical explanation as to why she cannot work at all, even with accommodation and that in light of the length of the plaintiff’s leave, frustration “is becoming a highly defensible position”. She concluded by telling the plaintiff that if she did not hear back within 14 days, “the termination will proceed”. On March 27 the plaintiff told Ms. Taylor she was seeing her psychotherapist the next week and updated medical information would be sent. When the plaintiff failed to follow up Ms. Taylor wrote to her on April 8 and stated:
If you are not prepared to provide the necessary medical information, we will have to conclude from that that you are not prepared to cooperate in your own accommodation and will therefore continue to process you as a termination, either for frustration of contract or for cause.
[10] On April 24, Ms. Taylor received a letter written to her from Dr. Cowen, the plaintiff’s psychotherapist, setting out several reasons why the plaintiff’s depression and anxiety affected her ability to perform her employment duties, including an impairment of her cognitive mental facilities as well as significant panic and anxiety. Dr. Cowen did not think that any accommodation would allow her to return to work at present, her prognosis was guarded but that slow continued resolution could be anticipated, but not for at least six months. On June 18, Ms. Taylor sent Dr. Cowen a copy of the statement of claim in the LTD action and pointed out that the pleading indicated she was not a suitable candidate to return to the workforce, which was different from Dr. Cowen’s prognosis of a return in six months. She asked Dr. Cowen to send her the most recent medical documentation he had provided in the LTD matter.
[11] The plaintiff then retained Ms. Pak to advance a claim for wrongful dismissal. On July 28 Ms. Pak wrote to Ms. Taylor and indicated that the plaintiff’s employment was terminated without notice on January 29, 2014, that the contract of employment was not frustrated and there was no cause for termination thereby triggering an obligation to provide pay in lieu of proper notice. She also indicated that the defendant terminated the plaintiff because she was on disability leave contrary to the HRC and that the assumption that she was feigning illness and did not wish to return to her employment because of childcare responsibilities amounted to discrimination on the basis of family status.
[12] Ms. Taylor replied on July 30 to Ms. Pak and denied that the plaintiff had been terminated yet stated she would be reinstated. In particular she stated:
Your client has not definitively been dismissed as you allege...I had indicated that the medical information would be reviewed prior to your client being reinstated and that is where the matter stands. Accordingly, it is not correct that your client has been terminated from her employment...Accordingly, without prejudice basis to its requirement of further medical information, our client will reinstate your client effective immediately. This eliminates the issue of wrongful dismissal.
[13] Ms. Taylor then attempted to explain what she meant in her letter of December 12, 2013 respecting childcare and how there was no breach of the HRC, but went on to state:
Your client’s job is not a complex one, and it is difficult for us to understand how her mental facilities could be so unfocused that she is not able to perform her duties, yet she is able to care for a young child, despite her LTD claim that she is unable to do so.
Ms. Taylor requested an independent medical examination to asses her limitations.
[14] On August 14 Ms. Pak told Ms. Taylor that in fact the plaintiff had been dismissed and is entitled to common law pay in lieu of reasonable notice, that there was no obligation to accept reinstatement and the ongoing references that she is exaggerating her disability to attend child care responsibilities “further justifies her claim that she has been discriminated against on the basis of family status.”
[15] On August 27 Ms. Taylor wrote to Ms. Pak reiterating that the plaintiff was terminated based on frustration but she has as a statement of fact, been reinstated and the only remaining issue is the adequacy of the medical evidence. She denied discrimination and explained that “it is simply a fact that she is looking after a young child, which requires focus and attentiveness, and yet she is allegedly unable to return to work even with accommodation because of a lack thereof.”
THE PLEADINGS AND REFERENCES TO MS. TAYLOR
[16] In the statement of claim, the plaintiff claims damages for wrongful dismissal, punitive damages and damages pursuant to the HRC. She pleads that she was terminated on January 29, 2014 while on disability leave, that she is entitled to damages for reasonable notice and that she was discriminated against and terminated because of her disability and her family status. She claims punitive damages for breach of the defendant’s obligation of good faith and fair dealing.
[17] There are many references to Ms. Taylor in the statement of claim.
[18] The plaintiff pleads that despite medical information from Dr. Cowen, “Blue Rock, by way of a letter from its counsel” dated December 12, 2013 indicated the medical information was inadequate, that Ms. Taylor’s December 12 letter (which was quoted in the pleading) indicated that “Blue Rock inferred that because Ms. Forsyth was at the time a mother with a three year old child that Ms. Forsyth was exaggerating or was disingenuous about the nature of her leave and her medical status”. She pleads that “Ms. Taylor on behalf of Blue Rock” sent the January 29, 2014 letter indicating she was terminated on account of frustration or alternatively for cause as her absence was not medically justified. She refers to the April 8, 2014 letter where “Ms. Taylor” confirmed the plaintiff was not reinstated regardless of returning the cheques. She pleads that “Ms. Taylor’s office” on October 30, 2013 sent Mr. Waxman confidential health information without authorization.
[19] She pleads that “Ms. Taylor’s letter (on behalf of Blue Rock)” accused her of being off work for child care responsibilities. She refers to “Ms. Taylor’s office” sending the April 8, 2014 letter confirming that her employment had not been reinstated despite return of the cheques. She quotes from the July 30, 2014 letter where “Blue Rock, by way of letter through its counsel” made reference to her ability to care for her child but not perform her work duties.
[20] In its statement of defence, the defendant pleads frustration of contract, the reinstatement of the plaintiff, cause for termination, abandonment of employment, the inadequacy of medical evidence and the justification for sending the letters referencing child care. In its statement of defence there are 22 references to letters sent or received by and statements made by “Defendant’s counsel”. There is one reference to an assumption made by “the defendant and its counsel”.
[21] The statement of claim was issued on October 16, 2014 under the simplified procedure. The statement of defence was filed on December 29, 2014. Draft affidavits of documents were exchanged. The parties attended mediation on June 3, 2015, but did not settle. That afternoon the defendant demanded further medical and other documentation.
[22] On June 10, 2015 Ms. Pak wrote to Ms. Taylor asking that she remove herself as defendant’s counsel or she would bring a motion to have her removed. She stated:
In light of the failed attempts to settle this matter through early mediation, and in light of the fact that the parties are now proceeding to examinations for discovery, at this stage I am of the view that you can no longer act as counsel. Your role in this matter, particularly as it relates to the key issues in dispute between the parties, precludes you from acting any further.
[23] On August 10, 2015 the plaintiff served a notice of motion to remove Ms. Taylor as lawyer of record for the defendant. On August 11, 2015 Ms. Taylor stated that the attempt at removal was to avoid a further and better affidavit of documents. She requested the further documents within 7 days and asked about updating the discovery plan. On August 18, the plaintiff served an unsworn supplementary affidavit of documents, which by letter of August 19 Ms. Taylor found to be inadequate. The statement of claim was amended on consent on August 21, 2015 to plead an alternate claim of constructive dismissal. An amended statement of defence was delivered on or about September 17, 2015. Between September 25 and 29 there was an exchange of emails between counsel about production of certain documents.
[24] On October 9 the plaintiff served the motion record for this removal motion. A responding record was served on October 11. The motion was heard by me on October 20, 2015. There were no cross-examinations as this is a simplified procedure action.
THE PLAINTIFF’S POSITION
[25] The plaintiff submits that major issues in the lawsuit are founded upon communications made by Ms. Taylor and the words used by Ms. Taylor, including:
(a) Was the plaintiff terminated?
(b) Was the plaintiff reinstated, and if so under what conditions?
(c) Did Ms. Taylor’s references to the veracity of the plaintiff’s disability and the suggestion that her motivation in not returning to work was to care for her child constitute discrimination based on disability and on family status?
(d) Did the communications from Ms. Taylor constitute unfair dealings in the plaintiff’s employment and termination of employment?
[26] The plaintiff submits that since Ms. Taylor’s letters lie at the heart of the causes of action she will be a necessary witness in the action and she cannot be both counsel and witness in the same proceeding. Alternatively the plaintiff submits that even if Ms. Taylor is not a witness, her words underlie the causes of action herein and she cannot act as counsel in defending the meaning and effect of her own words.
THE DEFENDANT’S POSITION
[27] The defendant submits that Ms. Taylor’s involvement was only by communication. She was not a witness or participant in any of the events outside of the letters and had no contact with the plaintiff other than in those letters. The letters are only documents and can be introduced into evidence by means other than viva voce testimony of Ms. Taylor. The letters speak for themselves, Ms. Taylor’s motivations are irrelevant and any interpretation will be a matter for determination by the trial court. As such there will be no need to call her as a witness.
[28] Further, all letters sent by Ms. Taylor were sent on behalf of and with the authority and instructions of her client, the defendant, and not on her own behalf. By way of responding affidavit, Mr. Neal, the president of the defendant avers:
I wish to make it clear that every step that Ms. Taylor took at all times, and in particular in connection with her direct communications with the Plaintiff, was taken on the express authority and instructions of the Defendant. In all respects, Ms. Taylor was acting only as a communicator, in writing, of the Defendant’s position in this matter. I am unaware of any action of Ms. Taylor’s which was outside the scope of that function such that is likely that she would be a witness in this action.
[29] Mr. Neal also states in his affidavit that “Ms. Taylor remains the Defendant’s lawyer of choice, and the Defendant is therefore unwilling to consider appointing alternative counsel without good reason.”
[30] He also opines that the plaintiff’s efforts to remove Ms. Taylor are an abuse of process and in bad faith and that the plaintiff was content to have Ms. Taylor remain as counsel through pleadings, productions and mediation. He believes the plaintiff is seeking to remove Ms. Taylor now firstly in the hope that different counsel might result in a different settlement position and secondly because of Ms. Taylor’s efforts to obtain full medical productions from the plaintiff. He claims neither position would change with new counsel since the decisions are his alone.
THE TEST FOR REMOVAL OF A LAWYER OF RECORD
[31] The overriding test for removal of counsel of record has been stated as follows:
The test for the removal of a solicitor of record is whether a fair-minded and reasonably informed member of the public would conclude that the removal of counsel is necessary for the proper administration of justice.[^1]
[32] The right to counsel of choice absent a compelling reason is one of the key considerations:
[T]he plaintiff is entitled to be represented by counsel of its choice, absent a compelling reason to the contrary based on the public perception of the integrity of the administration of justice.[^2]
The courts must balance a party’s “right to select counsel of choice” with the “public interest in the administration of justice” and “basic principles of fundamental fairness”. A removal order should not be made “unless there are compelling reasons”.[^3]
[33] Lawyers cannot act as counsel in an action where they will appear as witness on a contentious matter. Acting in this dual role would put the lawyers' credibility in issue and would create a conflict between counsel and the justice system. It would create a conflict between counsel’s obligation of objectivity and detachment, which are owed to the court, and his obligation to his client to present evidence in as favourable a light as possible.[^4] A “distinction must be drawn between the role of counsel as an independent officer of the court and the role of a witness whose objectivity and credibility are subject to challenge.”[^5]
[34] Courts however should remove a solicitor on this basis only in cases where it is clear the lawyer will likely be called to testify and should be reluctant to make premature orders in view of the waste of time and money and substantial delay which can result from a removal order.[^6] Where neither party has indicated a clear intention to call the lawyer as their witness, the motion to remove on that basis is premature, although the issue can be revisited should the likelihood of her testifying change.[^7] The court must carefully consider the right of a client to be represented by counsel of choice.[^8]
[35] A court “should approach the matter by following a flexible approach and consider each case on its own merits” A “variety of factors should be considered”, including[^9]:
-- the stage of the proceedings;
-- the likelihood that the witness will be called;
-- the good faith (or otherwise) of the party making the application;
-- the significance of the evidence to be led;
-- the impact of removing counsel on the party's right to be represented by counsel of choice;
-- whether trial is by judge or jury;
-- the likelihood of a real conflict arising or that the evidence will be "tainted";
-- who will call the witness if, for example, there is a probability counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising;
-- the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.
MS. TAYLOR AS WITNESS
[36] To disqualify Ms. Taylor as counsel on the basis that she will be a witness, the first and most fundamental factor to consider is the likelihood that she will be called as a witness at trial. The plaintiff has given no indication that it intends to call her as a witness. Her evidence would be to identify the sending and receiving of correspondence. She engaged in no oral conversations with the plaintiff nor was she witness to any meetings or other events. All the evidence is the written word. The defendant takes the position that it has no need to introduce the evidence of the written communications through Ms. Taylor as witness. That evidence may be introduced by admissions at discovery, by requests to admit and by the evidence of Mr. Neal who is expected to testify that all letters were sent with his instruction and approval.
[37] Although suggested in argument that it may do so, there is at this time no undertaking from the plaintiff that she will call Ms. Taylor as her witness.
[38] In my view it is not at all clear, at least at this stage, that Ms. Taylor will be called as a witness to give evidence at the trial.
[39] The evidence of the letters is significant and key to a number of issues in the action. Ms. Taylor’s evidence however would be that she sent the letters and possibly what was meant by the words used therein; however the letters will speak for themselves and any attack on the motives or intentions of the sender or questions as to what was meant by the words in the letters (e.g. was she terminated or not?) are really questions as to the intentions of the defendant, upon whose instructions they were sent. I disagree with the defendant that subjective intentions are never relevant[^10] and in this case the intentions and for example, the genuineness of the offer to reinstate, are very much in issue, but it is not clear that the intentions of Ms. Taylor as opposed to Mr. Neal who instructed her, are relevant. There is no convincing evidence that Ms. Taylor’s evidence would contradict that of Mr. Neal,[^11] although that could change after examinations for discovery.
[40] Since there is no clear evidence that either party will call Ms. Taylor as a witness. I would not remove her on this basis. There are other factors to consider on a removal motion and these will be discussed in dealing with the second ground for removal.
IS MS. TAYLOR COMPROMISED AS COUNSEL EVEN IF NOT CALLED AS A WITNESS
[41] Even if Ms. Taylor is not a witness, it is her words that underlie the causes of action herein. It is Ms. Taylor’s words that lie at the heart of the dispute whether the plaintiff was terminated and whether she was reinstated and if so the genuineness of the offer to reinstate, the genuineness of any willingness to accommodate the plaintiff’s disability and any pre-conditions to reinstatement. It is Ms. Taylor’s words that refer to the veracity of the plaintiff’s disability and the suggestion that the plaintiff’s motivation in not returning to work was to care for her child. Depending on the meaning attributed to Ms. Taylor’s words, a cause of action may lie against the defendant for discrimination based on disability and on family status. It will be Ms. Taylor’s words that could be said to constitute unfair dealings in the plaintiff’s employment and termination of employment, thereby underlying the plaintiff’s claim for punitive damages against the defendant. Finally, the plaintiff asserts that the symptoms of her stress, anxiety and depression deteriorated as a result of the communications from Ms. Taylor.
[42] Notwithstanding that Ms. Taylor may have communicated the impugned words “on the express authority and instructions of the defendant” and may have been “acting only as a communicator, in writing, of the defendant’s position in this matter”, they are still Ms. Taylor’s words. No matter whether she wrote the words with her client’s authority, they were still words drafted and communicated by her. The meaning, genuineness and legal effect of those words are in issue in this action.
[43] Both the statement of claim and the statement of defence are replete with references to “Ms. Taylor” and to “defendant’s counsel” in relation to the impugned communications. The defendant could have easily pled that the defendant sent a communication, but it chose instead, presumably as a material fact, to plead that its counsel sent it.
[44] This creates two problems that would be of concern to “the integrity of the administration of justice” and its public perception. These problems do not disappear simply because it may not be necessary to call Ms. Taylor as a witness to prove that communications authored by her were sent.
[45] Firstly, and most importantly she will be arguing, as counsel, about the meaning, genuineness and effect of her own words as expressed in her communications. The plaintiff will be arguing that Ms. Taylor’s expression of an offer to reinstate was not a genuine intention to reinstate or accommodate, but an attempt to avoid the defendant’s severance obligations and that Ms. Taylor’s requests for medical documentation were nothing more than an attempt to justify the plaintiff’s dismissal based on frustration of contract. The plaintiff will be arguing that the implications of Ms. Taylor’s remarks that the plaintiff was staying home not because of disability but to care for her child and that it was strange that the plaintiff could look after her child but not work were discriminatory.
[46] Ms. Taylor will be arguing at trial that there was a genuine offer to reinstate, that there were legitimate reasons to demand more fulsome medical evidence to justify the plaintiff’s absence and that her remarks were not intended to discriminate based on disability or family status.
[47] No matter whose version turns out to be accurate, Ms. Taylor, in making submissions as counsel will be defending the meaning and effect of her own words. Whether or not the communications were sent on her client’s instructions, she is the one who sent the letters and she will be arguing whether the offer and remarks in her own letters were genuine. As such, at the same time that she is acting as counsel, she is putting her own credibility in issue. In argument, Ms. Taylor as counsel would normally be making submissions based on the evidence before the court; however she would also have her personal views of what she meant when she said certain things to the plaintiff and it would be difficult to separate the two. She is clearly in a position of conflict between her own interests and her obligations as an advocate to fairly and objectively present evidence and argument at trial.
[48] In short, Ms. Taylor is so closely connected to the material facts underlying this action that she is compromised as an advocate even if she is never called as a witness.
[49] Secondly, it would not be fair to the plaintiff to permit Ms. Taylor to cross-examine the plaintiff at trial or examine her for discovery, on Ms. Taylor’s own communications to and from the plaintiff when the very genuineness of the communications are in issue. The mischief arises not from the lawyer’s position as a witness, but rather from her position as advocate. Questions that Ms. Taylor poses to the plaintiff would carry with it counsel’s own version of the facts. The plaintiff’s credibility would be measured not based on her evidence but in contrast to Ms. Taylor’s own unsworn version of the meaning of the communications.
[50] Although the case quoted below involved counsel having been present at a meeting when matters were discussed, the principle of examining a witness based not on a brief but on counsel’s own participation is similar:
In my view, the issue is not the lawyer's position as a witness but his position as advocate. I doubt whether any party or a witness may be cross-examined by a lawyer who could cross-examine not on the basis of his brief but on the basis of his participation in the event or transaction cross-examined on. Any question, leading or not, once posed by the lawyer is unfair to the witness and carries with it the appearance of an unsworn offer of the advocate's version of the facts. In addition, questions put in cross-examination by the lawyer witness would create the uneasy feeling in the mind of the plaintiff in this case that the measure of his credibility could be based not on the basis of the evidence but the unsworn declaration of a judicial participant in the proceeding, the defendant's lawyer. It goes without saying that the lawyer cannot compartmentalize his or her mind to exclude actual knowledge of the event. As well, the court should ensure no conflict in the lawyer's duty as advocate and as an officer of the court. For example, what is the lawyer to do if his memory of the event differs from the evidence in-chief he hears from his witnesses.[^12] [emphasis in original]
LAWYERS INVOLVED IN THE TERMINATION PROCESS ACTING AS COUNSEL IN ENSUING LITIGATION
[51] Ms. Taylor argues that a lawyer who advocates before litigation should be able to continue that advocacy once the litigation starts and should not be forced to send the client to another lawyer. She argues that removing a lawyer who sends pre-litigation letters to the client’s adversary would put a chill on lawyers being a strong advocate for her client. I disagree.
[52] I do not purport to suggest that counsel can never act for an employer client on a termination and then act for the same client in ensuing litigation. Rather there is a sliding scale of involvement. At one end of the spectrum is the lawyer who provides legal advice about termination and possibly vets or even “ghost writes” pre-termination and termination communications with the employee, but all communications to the employee come directly from the employer. Clearly the advising lawyer can act for the employer in ensuing litigation as she is not the named author of contentious communications. It is clearly the employer and only the employer who has made impugned statements.
[53] An example of counsel’s involvement in the middle of the spectrum is where the lawyer sends a termination letter in her own name which clearly communicates a dismissal and possibly the grounds for cause such that the only issues in the litigation may be the existence of cause and the reasonableness of any notice, but no cause of action is said to arise from the words used in the letter. In my view that would not disqualify counsel acting in the litigation.
[54] At the other end of the spectrum is the situation before me – where a lawyer becomes immersed (on behalf of her client) in demanding medical evidence, drawing conclusions about the sufficiency of that evidence and what it means in turns of frustration (inability to return to work) and cause (unwillingness to return to work), makes inferences to the employee about her motivations about staying away from work (that are said to amount to discrimination under the HRC) and conveys demands, dismissals, offers to reinstate and conditions on reinstatement. In that case the lawyer has become a participant in the termination and her communications themselves are said to underlie causes of action that have been asserted. In that case the line between participant and counsel has been blurred and counsel cannot be both participant and advocate.
[55] I do not fault counsel for taking an active and partisan role in the termination process and even managing the process by undertaking all communication with the plaintiff in her own name to ensure it is done properly. In those circumstances, however, counsel should not seek to represent the client in any ensuing litigation or should immediately withdraw without the need for a motion where the communications of counsel are themselves seen to be controversial and are made an issue in the litigation.
CONCLUSIONS
[56] I have considered the factors relevant to motions to remove counsel. While freedom of a litigant to choose their own lawyer is an important interest to protect, “the right to be represented by counsel of choice can be outweighed when the administration of justice would be detrimentally affected.”[^13]
[57] Although pleadings and productions have been exchanged and mediation conducted, the action is at a relatively early stage of the proceeding, prior to discovery, and so any detrimental impact on the defendant of requiring new counsel would be minimal. While there will always be some disruption on a party when removing their counsel of choice, the impact at this stage would be relatively modest. The action is at the threshold of entering a new stage in the action, the conduct of discoveries and then trial.[^14]
[58] Although it may not be necessary to call Ms. Taylor as a witness, and neither party has undertaken to do so, Ms. Taylor’s participation in the events underlying the causes of action in this litigation is central. It is almost certain that her credibility will be in issue whether or not she is litigation counsel. What changes if she is no longer acting for the defendant is the removal of her conflict between her role as counsel and as participant. Although her credibility remains in issue, she will not be the advocate making submissions to the court about the evidence in which she played a significant role.
[59] Although the defendant questions the good faith of the plaintiff bringing the motion, particularly after allowing Ms. Taylor to act as counsel though pleadings, productions and mediation, I am not satisfied that it is supported by the evidence. The stages of this action have so far not involved the giving of evidence, or the subjecting of the plaintiff to cross-examination or discovery by Ms. Taylor, which is where the mischief lies. Although alleged by the defendant, I do not accept that any evidence supports the proposition that the plaintiff wants to get rid of Ms. Taylor to get a different approach to settlement or to avoid production obligations. As Mr. Neal admitted, his settlement position and his demand for medical evidence would not change if the defendant were to change lawyers, since he is the same person making the decisions and giving instructions.
[60] Returning to the core issue on motions of this nature, I am of the view in all the circumstances that “a fair-minded and reasonably informed member of the public would conclude that the removal of counsel is necessary for the proper administration of justice”.
[61] I note that the motion sought only the removal of Ms. Taylor. I was not asked to consider, nor do I consider, the appropriateness of Stringer LLP continuing to act for the defendant through different counsel. If this should become an issue, then it can be determined by motion to amend my order pursuant to rule 59.06(1) as a matter “on which the court did not adjudicate”.
COSTS
[62] The plaintiff was successful in removing Ms. Taylor as lawyer of record for the defendant and she is entitled to her costs. Plaintiff’s counsel submitted that if their motion was successful they should be paid costs on a substantial indemnity scale because there was no basis to oppose the motion and because the defendant accused the plaintiff of bad faith and improper motives in seeking to remove Ms. Taylor to get a better settlement and avoid ongoing medical production. The plaintiff’s bill of costs outlines actual costs of $10,797, substantial indemnity costs of $9,798 and partial indemnity costs of $6,941.
[63] The defendant had asserted it should be paid substantial indemnity costs if it was successful because of unfounded allegations of conflict (as it turns out the allegations of conflict were well founded), and because of the timing of the motion which demonstrated bad faith (a suggestion I found had no merit on the evidence). The defendant’s costs outline indicates substantial indemnity costs of $6,647 or partial indemnity costs of $5,639.
[64] Notwithstanding all of the above, I do not find that the defendant’s actions amounted to such outrageous or reprehensible conduct as to merit costs other than on a partial indemnity scale. It was not unreasonable to oppose the motion given that the plaintiff was seeking to remove defendant’s counsel of choice. The motion was legally complicated and was important to both parties. Both parties put in significant work and prepared evidentiary materials, a factum and authorities.
[65] In my view the plaintiff’s fair and reasonable costs on a partial indemnity scale should be fixed at $6,500 inclusive of HST and disbursements. This is an amount that should have been within the reasonable expectations of the defendant if it unsuccessfully opposed the motion.
ORDER
[66] I hereby order as follows:
(1) Allison Taylor is removed as lawyer of record for the defendant.
(2) Within 30 days the defendant shall either file a notice of change of lawyers or seek leave to be represented by a person who is not a lawyer.
(3) The defendant shall pay to the plaintiff her costs of this motion within 30 days fixed in the sum of $6,500.00.
Master R. Dash
DATE: December 10, 2015
[^1]: Carterra Management Inc. v. Palm Holdings Canada Inc., 2011 ONSC 7087 (S.C.J.) at para 6
[^2]: Carterra Management Inc. v. Palm Holdings Canada Inc., supra at para. 11
[^3]: Graham v. Ontario, 2006 CarswellOnt 1156 (S.C.J.) at para. 34, quoting R. v. Speid (1983), 43 O.R. (2d) 506 (C.A.) at p. 20
[^4]: Urquhart v. Allen Estate, [1999] O.J. No. 4816 (S.C.J.) paragraph 27; Bedford Resources Holdings Ltd. v. 743584 Ontario Inc., [2009] O.J. No. 1299 (SCJ – Master) at para. 1
[^5]: Urquhart v. Allen Estate, supra, at para. 28
[^6]: Essa (Township) v. Guergis, 1993 CanLII 8756 (ON SCDC), [1993] O.J. No. 2581, 15 O.R. (3d) 573 (Div. Ct.) at para. 43; Bedford Resources Holdings Ltd. v. 743584 Ontario Inc., supra at para. 1
[^7]: Bedford Resources Holdings Ltd. v. 743584 Ontario Inc., supra, at paras. 5-7.
[^8]: Essa (Township) v. Guergis, supra, para. 47.
[^9]: Essa (Township) v. Guergis, supra, para. 48
[^10]: The example given by the defendant, as in Carterra Management Inc. v. Palm Holdings Canada Inc., supra at para. 5 deals with the lack of relevance of subjective intention in contract formation, but that is a very different matter than the genuineness of the offer of reinstatement.
[^11]: Coe v. Sturgeon General Hospital, 2000 ABQB 698 at paras. 34-39.
[^12]: Young-Tangjerd v. The Official Board of Calvary United Church, 2006 CanLII 17946 (ON SC), [2006] O.J. No. 2161 (S.C.J.) at para.7
[^13]: Karas v. Ontario, 2011 ONSC 5181, [2011] O.J. No. 3932 (SCJ-Master) at para.45.
[^14]: Rice v. Smith, 2013 ONSC 1200, [2013] O.J. No. 784 (S.C.J.) at paras. 51-53.