SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: C-1113-11
DATE: 2015-11-13
RE: Kenneth Vaillancourt, Plaintiff
AND:
Robin Sloss and Jeannine Sloss, Defendants
BEFORE: The Honourable Madam Justice Louise L. Gauthier
COUNSEL:
Celeste Courville, Solicitor for the Plaintiff
Jordan E. Duplessis, Agent for Stephen R. Schenke, Solicitor for the Defendants
Kenneth Vaillancourt, in person
HEARD: November 13, 2014
ENDORSEMENT
[1] Wallbridge, Wallbridge seeks an order removing itself as counsel of record for the plaintiff, Kenneth Vaillancourt, an order sealing the affidavits filed by Wallbridge, Wallbridge on this motion, and an order adjourning the trial scheduled to begin on November 30, 2015.
[2] Counsel for the defence took no position on the motion for removal and indicated that, if the motion were granted, they would consent to an adjournment of the trial. If the motion were denied, they would not consent to an adjournment of the trial.
[3] The plaintiff opposes the motion, taking the position that the law firm should be made to follow through on its commitment to represent him to and including trial.
[4] For reasons that follow, I am granting the motion and adjourning the trial from the November 30, 2015, sittings to the January 6, 2016, assignment court to set a new date for trial. This will permit the plaintiff to retain new counsel if he so chooses.
[5] The motion material discloses that there is currently a Rule 49 offer to settle in the amount of $10,000 plus interest. Wallbridge, Wallbridge has strongly urged the plaintiff to accept the offer. It is counsel’s view that on the facts of this case the risk of the plaintiff recovering less than that, or even nothing, after trial is significant.
[6] The collision giving rise to the action occurred in 2009 and was a low speed collision, with the defendant travelling at approximately 5 km per hour. There is the possibility of a finding of contributory negligence on the part of the plaintiff.
[7] At the time of the collision, and since then, the plaintiff was collecting CPP and WSIB benefits due to a work-related injury which occurred in the 1980s. The plaintiff was also involved in a subsequent motor vehicle accident in 2013; he had been involved in another such accident in the 1980’s.
[8] There is an issue about threshold and there is the matter of the $30,000 deductible.
[9] In view of those facts, counsel was and is of the view that the offer made is a reasonable one that should be accepted by the plaintiff.
[10] The plaintiff views the offer as being too low and wishes to have “his day in court”.
[11] Although there was serious concern about the prejudice the plaintiff would suffer if he found himself without counsel within weeks of the trial date, that concern has been alleviated with the consent of the defence to an adjournment. A new date for trial can be set, which will permit the plaintiff to retain new counsel if he so chooses.
[12] The plaintiff’s opposition to the request for removal is untenable on the facts.
[13] The motion material makes it clear that, despite saying he wishes to work productively with his lawyers, the plaintiff no longer has confidence in them or in their ability to adequately represent him.
[14] As was the case in Gaskin v. Gaskin, [2008] M.J. No. 138, the plaintiff opposes the withdrawal of the law firm despite the palpable loss of confidence that he has expressed in his materials.
[15] The motion material filed by the plaintiff discloses that a telephone conversation between his counsel and his son was tape recorded by his son, without the knowledge of counsel. This denotes a high level of distrust.
[16] The actions of Wallbridge and Wallbridge in not wishing to take the case to trial have been described by the plaintiff as “unfair, unethical, and a scheming tactic”.
[17] The plaintiff has used the following language in describing his counsel and her law firm:
They are more concerned with their payment than my proper representation putting their needs before mine.
Where is the muscle?
Wallbridge, Wallbridge have let themselves be intimidated by the defence.
They try to manipulate the system.
The firm’s conduct has been suspect and misleading.
[18] The above statements make it clear that there no longer is trust and confidence between the plaintiff and his counsel. There has been a complete breakdown of the solicitor-counsel relationship.
[19] It is always difficult where a lawyer seeks to be removed as counsel of record and that request is opposed by the client. There has to be a good reason to permit the withdrawal of the lawyer, especially so close to the trial date.
[20] Although it would certainly have been preferable if the motion had been made well in advance of this date, nonetheless it is appropriate, given the adjournment of the trial date, to permit counsel to withdraw. Counsel has recommended an offer which it characterizes as reasonable, having an intimate knowledge of the case and its frailties. The plaintiff is at liberty to reject the offer, but cannot force counsel to proceed to trial if counsel has assessed the risk of going to trial as being inordinate.
[21] ORDER TO GO AS FOLLOWS:
The law firm of Wallbridge, Wallbridge will be removed as counsel of record for the plaintiff.
The affidavits of Christina Mortson and Sara Gaudreau in support of the motion shall be sealed.
The trial of the within action is adjourned from the November 30, 2015, running list, is adjourned to January 6, 2016, to set a new date for trial.
Proof of service of this order shall be filed forthwith after the order is served.
The plaintiff shall, within 30 days after being served with the within order, appoint a new lawyer of record, or serve a notice of intention to act in person, in accordance with the provisions of Rule 15.04(8) of the Rules of Civil Procedure.
No costs are awarded on this motion.
The Honourable Madam Justice Louise L. Gauthier
Date: November 13, 2015