Stawro v. Mayfield, 2016 ONSC 6054

CITATION: Stawro v. Mayfield, 2016 ONSC 6054

COURT FILE NO.: CV-15-5755-00

DATE: 2016 09 26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOHN STAWRO v. MAYFIELD HOLDINGS INC. and HARPREET SETHI

BEFORE: Price J.

COUNSEL: Amandeep Sidhu, for the Plaintiff (participating)

Olubunmi Ogunniyi, for the Defendants (not participating)

E N D O R S E M E N T

1A telephone conference was convened on September 21, 2016, at the request of the plaintiff’s solicitor, Mr. Sidhu, for the purpose of settling the form of an order made by me in the form of a handwritten endorsement at a motion in this action on June 10, 2016.

2Both parties’ counsel were present for the hearing of the motion on June 10, 2016. On September 21, 2016, Mr. Sidhu advised the Court that Mr. Ogunniyi, who had attended as the defendants’ counsel of record at the hearing on June 10, 2016, had declined to participate in the conference call.

3The defendants delivered a Notice of appointment of Mr. Ogunniyi as their solicitor on June 9, 2016. Mr. Sidhu advised the Court on September 21, 2016, that two weeks after the hearing on June 10, 2016, he received a Notice of Intention to Act in Person from the defendants. He believed that the Notice had not been filed with the court, as the corporate defendant required leave of the court to be represented by a non-lawyer. I have confirmed with the court office that the Notice of Intention to Act in Person was not filed with the court.

4Mr. Sidhu advised the Court that when he sent the draft Order dated June 10, 2016, to Mr. Ogunniyi for his approval as to form and content, Mr. Ogunniyi declined to approve it because the defendants had terminated his retainer and Mr. Ogunniyi was no longer able to obtain instructions from them.

5Rule 15.05 of the Rules of Civil Procedure provides:

15.05 A lawyer of record shall act as and remains the lawyer of record for his or her client until,

(a) the client delivers a notice under Rule 15.03 [Change of Representation of a Party]; or

(b) an order removing the lawyer from the record has been entered, served on the client, and every other party and, where required, by subrule 15.04(3), in accordance with that subrule, and filed with proof of service.

The legal obligation on the defendants’ solicitor

6Because the defendants’ Notice of Intention to Act in Person was never filed with the court, Mr. Ogunniyi had a duty to approve the draft order as to form and content, unless there was a legitimate reason for not doing so. I have reviewed the draft order, and it is in accordance with the endorsement I made. There appears to have been no legitimate reason for Mr. Ogunniyi not to approve the order as to form and content.

The legal obligation of the corporate defendant

7If Mayfield Holdings Inc. wished to terminate the retainer of its lawyer and to represent itself in the action, it was obliged to apply to the court for leave to be represented by a non-lawyer before delivering a Notice of Intent to Act in Person. It was not entitled simply to deliver such a Notice of Intent, even if it had added the words, “subject to Rule 15.01(2)” (requiring the corporate defendant to obtain leave to be represented by a non-lawyer). For a corporate defendant to proceed, without leave, to terminate its lawyer’s representation of it can prejudice the other party to the action.¹ In the present case, it prejudiced the plaintiff by delaying the entry and enforcement of the order.

8A corporate defendant may follow a different procedure when it receives a motion by its counsel to be removed as its solicitor of record. If the corporate defendant consents to the counsel’s motion, it may file a Notice of Intent to Act in Person, and subsequently seek leave from the court to represent itself in the proceeding.²

9In Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd, in 1991, lawyers representing a personal defendant and a corporate defendant requested an adjournment of a motion because the defendants had lost confidence in their lawyers.³ The lawyer informed the court on the record that an order would shortly be brought removing his firm as solicitors. The plaintiff prepared a draft order and sent it to the defendants’ lawyer for approval. The lawyer refused to approve the order on the ground that while they were still the lawyers of record, they were no longer acting for the defendants, and the defendants had specifically instructed them not to approve the order.⁴ The court held that the solicitor was obliged to approve a draft order where there was no legitimate objection to it. Ceasing to act for the defendants did not alter his obligations.⁵

10The court in Chrysler Credit Canada Ltd. referred to the Rules of Professional Conduct and, in particular, the courtesy and respect owed to the tribunal (Rule 8), and the obligation to deal with other lawyers with courtesy and in good faith (Rule 16).⁶ It held that the defendants’ lawyer owed an obligation to the court and the plaintiff’s solicitor, as well as to the client. Ceasing to act did not relieve him of his obligation to the court and to the other solicitor.⁷

11The Master also commented that if the order was not approved by the solicitor who appeared on the motion, a succeeding solicitor may argue that he cannot give approval as he was not present on the motion, or there may be no succeeding solicitor. This would cause a breakdown in the court process causing unnecessary delay and expense.⁸

12The Master emphasized the importance of the solicitor who appeared on the motion approving the order. He noted that if that solicitor did not approve the order, a succeeding solicitor might argue that he could give the necessary approval either, as he was not present on the motion, or there might be no succeeding solicitor. This would cause a breakdown in the court process causing unnecessary delay and expense.⁹

13The Court of Appeal, in Folkes v. Greensleeves Publishing Ltd., in 2002, approved the decision in Chrysler Credit Canada Ltd.¹⁰ The Court of Appeal held even where a client has indicated that he intends to proceed on his own behalf, and counsel has ceased to act on the client’s behalf, counsel still has a professional obligation to the court and other counsel to approve an order to which there is no valid objection.¹¹

CONCLUSION AND ORDER

14The defendants’ conduct in the present case, of serving a Notice of Intention to Act in Person without first seeking leave to do so, combined with Mr. Ogunniyi’s improper refusal to approve the draft Order as to form and content, delayed the plaintiff’s ability to have the Order entered and implemented.

15The defendants still have not moved for leave to act in person. I make no comment as to whether such a motion is likely to be successful, but note that Master Sandler set out the factors to be considered on such a motion in 419212 Ontario Ltd. v. Astrochrome Crankshaft Toronto Ltd., supra. The defendants’ failure to seek such leave in a timely manner exposes them to adverse consequences in the action. See, in this regard, The Corporation of the Municipality of South Bruce v. 1260964 Ontario Inc., in 2015.¹² Additionally, Mr. Ogunniyi, by not applying to be removed as the defendants’ solicitor of record, may be exposing himself to costs in the action, if not disciplinary action by The Law Society.

16I have signed the draft Order submitted by Mr. Sidhu, and will direct that the Court enter it and notify Mr. Sidhu when it can be collected.

Price J.

Footnotes

1. 1Kuock Landu Investments v. Daniel MacDonald Investments et al (2007) 2007 CanLII 45715 (ON SC), 88 O.R. (3d) 236 (Ontario Master)
2. 2Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 15.01(2) and 15.03(2); 419212 Ontario Ltd. v. Astrochrome Crankshaft Toronto Ltd. (1991) 1991 CanLII 7163 (ON SC), 3 O.R. (3d) 116 (Ont. Ct. Gen’l Div., Master)
3. 3Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd, [1991] O.J. No. 3619, para. 2
4. 4Chrysler Credit Canada Ltd., supra, para. 5
5. 5Chrysler Credit Canada Ltd., supra, paras. 17 and 18
6. 6Chrysler Credit Canada Ltd., supra, para. 16
7. 7Chrysler Credit Canada Ltd., supra, para. 19
8. 8Chrysler Credit Canada Ltd., supra, para. 19
9. 9Chrysler Credit Canada Ltd., supra, para. 19
10. 10Folkes v Greensleeves Publishing Ltd., [2002] O.J. No. 1231 (Ont. C.A. – in chambers)
11. 11Folkes, para. 55
12. 12The Corporation of the Municipality of South Bruce v. 1260964 Ontario Inc. (2015) ONSC 2206