CITATION: Leduc v. Pharand, 2017 ONSC 6690

COURT FILE NO.: A-12995-16

DATE: 2017-11-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RENE LEDUC AND JULIE LEDUC Applicants

– and –

RICHARD A. PHARAND Respondent

John Bruggeman, for the Applicants

For self

HEARD: August 9, 2017

rasaiah j.

REASONS ON application and motions

OVERVIEW

[1] The applicant seeks:

a. By way of application: determination of the question formulated by Hennessy J. on June 10, 2016, namely:

"Did the agreement between Mr. Pharand and Mr. and Mrs. Leduc, and in particular paragraph seven (7) of the Retainer and paragraph ten (10) of Schedule A, signed June 25, 2013, or any other agreement between the parties, permit or authorize Mr. Pharand to hire Jan Weir as agent or expert lawyer or in any other capacity to assist or do work on the Leduc file and if so, to charge for Mr. Weir's fees?";

and seeks a referral back to the assessment officer for assessment of the respondent's accounts; and costs.

b. By way of motion: a contempt order against the respondent related to Hennessy J.'s order dated June 10, 2016; an order striking the respondent's July 20, 2016 affidavit; an order removing motion materials from the court file on the conclusion of the motion; alternatively, an order sealing the file for an appropriate period of time; and costs.

c. By way of motion: an order finding that the respondent and/or his counsel breached Hennessy J.'s order of October 7, 2016; an order striking the respondent's July 20, 2016 affidavit; alternatively, an order sealing the file for an appropriate period of time; and costs.

[2] The respondent abandoned the motion he had before the court (originally returnable October 7, 2016) on the basis that a sealing order had been made by Del Frate J. on April 21, 2017 which satisfactorily addressed his concerns. The respondent, I noted when I received the file, had a second motion seeking to adjourn the hearing that proceeded before me. He did not pursue that motion before me, and at the start of the hearing, the respondent indicated he was ready to proceed and that he was choosing to proceed as a self-represented party. As such, I endorsed that motion as withdrawn.

BACKGROUND

[3] The applicants ("R. Leduc" and "J. Leduc" or "applicants" collectively) are former clients of the respondent.

[4] The respondent had been retained by the applicants on June 25, 2013 by written retainer agreement of the same date ("retainer agreement"). The respondent had been retained with respect to a nuisance and trespass to property claim the applicants were seeking to make against their neighbours and others relating to e-coli bacteria found in their tap water.

[5] The applicants' claim remains active but they are now represented by new counsel. The respondent's retainer was terminated in March of 2014.

[6] Following the termination of the retainer, and after requesting a final account, the applicants allege that they learned for the first time that they were being billed by the respondent for his consultations with another lawyer, namely Jan Weir ("Weir").

[7] The applicants allege that Weir had not been retained in accordance with the requirements set out in the retainer agreement between them and the respondent.

[8] The applicants had taken steps to assess the respondent's accounts. An assessment hearing was set. There were two assessment hearing dates, September 9, 2014 and May 20, 2015.

[9] On September 9, 2014, the assessment hearing was adjourned to May 20, 2015 to allow a list to be prepared as to what was in dispute.

[10] On May 20, 2015, Regional Hearings Officer Girard ("assessment officer"), found that he could not proceed with the assessment; that there were special circumstances involving the retainer that required a Superior Court judge to make a determination.

[11] The applicants brought the required application to the Superior Court of Justice to seek a declaration that the retainer agreement did not permit the respondent to retain and charge for an expert lawyer to assist him without their specific knowledge and consent.

[12] There was an attendance on this application on May 27, 2016 before Gordon J. On this date, the applicants consented to have the matter adjourned to June 10, 2016, to be spoken to, but not to be argued at that time.

[13] On June 10, 2016, J. Leduc attended at court. Hennessy J. was presiding. The respondent did not attend; his counsel did. He was represented by Mr. Longstreet. Two days prior, on June 8, 2016, Mr. Longstreet had served the respondent's responding affidavit by way of email. The affidavit was not yet filed at the time of the June 10, 2016 court appearance.

[14] It appears that it was not clear to Hennessy J. as to what was in issue based on the materials filed with the application and jurisdiction of the court as a result. After a review of the matter and addressing jurisdiction, Hennessy J. framed a question for the court to determine as follows, on consent of the applicants but not on consent of the respondent. The question was:

Did the agreement between Mr. Pharand and Mr. and Mrs. Leduc and in particular paragraph 7 of the retainer and paragraph 10 Schedule "A", signed June 25, 2013 or any other agreement between the parties permit or authorize Mr. Pharand to hire Jan Weir as agent or expert lawyer or in another capacity to assist or do work on the Leduc file? And if so to charge for Mr. Weir's fees?

[15] Hennessy J. ordered that the said question be put before the court and scheduled as a long motion. Hennessy J. further ordered that the affidavit, that had been served by Mr. Longstreet by email, sworn by the respondent on June 8, 2016, shall not be filed. Hennessy J. ordered that material filed should relate only to the retainer agreement issue in question. Lastly, Hennessy J. ordered that the parties were to obtain a date from the trial coordinator, with a timetable for filing.

[16] After J. Leduc requested that the respondent serve the affidavit required to move the matter forward, Mr. Longstreet served an affidavit of the respondent dated July 20, 2016. This affidavit, the applicants submitted was almost identical to the affidavit which Hennessy J. ordered not to be filed; that the affidavit, dated July 20, 2016, went far beyond the question framed by Hennessy J. and appeared to be intentionally designed to violate solicitor-client privilege and to damage the applicants' prospects for success in the action against their neighbours and other parties.

[17] In particular, the applicants objected to the inclusion of paragraphs 3, 5, 6, 7, 8, 9, 10, 11, 12, 15, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31, on the basis that the content of those paragraphs represented an intentional breach of confidentiality and solicitor-client privilege which cannot be justified as being relevant to the question that was identified as being before the court by Hennessy J. They argued that those paragraphs contained legal advice, which in many cases was not actually provided, and set out information about the applicants' case which is in no way relevant to the issue before the court and appears to have been included solely to prejudice the applicants' ongoing litigation. The applicants took the same position with respect to correspondence attached as Exhibits B and C.

[18] As a result of the above, the applicants brought their first motion, seeking a civil contempt order, and the other relief as set out in the Overview section herein. The return date of that motion was October 7, 2016. On the return date, Hennessy J. adjourned the applicants' motion for contempt without a date. Hennessy J. ordered, on consent, that there would be a sealing order governing materials which would be covered by the solicitor-client relationship/retainer. Hennessy J. further ordered that the application was adjourned to a date to be set by the trial coordinator. Hennessy J. ordered that the sealing order was to be restricted to those matters which disclosed information which would be subject to solicitor-client privilege. Hennessy J. ordered that Mr. Longstreet, the respondent's counsel, was to identify the specific documents or pleadings which he proposed to be sealed and serve the applicants by October 14, 2016. The applicants were then permitted to consent to the list or file an objection by October 21, 2016. The consent or proposal and objection were to come to Hennessy J. by October 26, 2016.

[19] The applicants allege that following the attendance on October 7, 2016, despite their demands, no formal proposal was ever received and that as a result, the applicants were in the unfortunate position of being unable to file an objection by October 21, 2016. Consequently, they state, as Hennessy J. did not have a proposal from Mr. Longstreet, Hennessy J. did not make an order authorizing the sealing by October 26, 2016, as was envisioned by her order dated October 7, 2016.

[20] The applicants allege that as direct result of the failure of Mr. Longstreet to abide by the order of Hennessy J. dated October 7, 2016, the applicants had little choice but to bring their second motion returnable initially on March 17, 2017 for an order finding the respondent and/or his lawyer Mr. Longstreet in breach of the order of Hennessy J., dated October 7, 2016. The applicants reiterated their position that the respondent's July 20, 2016 affidavit was replete with personal observations, irrelevant and detailed legal advice, material which clearly violated solicitor-client privilege, and was in breach of the order of Hennessy J. dated June 10, 2016, and further expressed concern that it remained in the court file and accessible to members of the public, including the opposing parties in the nuisance and trespass to property action which remained ongoing, despite the orders of Hennessy J. dated June 10, 2016 and October 7, 2016.

[21] Hennessy J. held a telephone conference on March 23, 2017 with the parties to determine if the order made in the endorsement dated October 7, 2016 was sufficiently clear to proceed to a motion for contempt on April 21, 2017. Hennessy J. ordered that J. Leduc was to take out all prior orders, and that Mr. Longstreet, as the respondent's counsel, was to write to the applicants by April 13, 2017, regarding redacting the disputed affidavit and identifying which documents/pleadings were to be sealed. The applicants alleged that Mr. Longstreet failed to properly comply with paragraph 2 of Hennessy J.'s order dated March 23, 2017.

[22] On April 21, 2017, Del Frate J. ordered, on consent, that the entire file be sealed pending further order of the court. Del Frate J. further ordered that the remaining issues were to be dealt with at the long motion hearing date, being August 9, 2017.

ANALYSIS

QUESTION FORMULATED BY HENNESSY J.

The Law:

[23] The analysis involves an interpretation of the retainer agreement and/or determination of any other agreement between the parties and the effect.

[24] The starting interpretive principle to the retainer agreement is to give effect to the clear language, reading the retainer agreement as a whole.

[25] Any ambiguities in a retainer agreement, based on the contra proferentum doctrine, must be interpreted against the drafter, which in this case is the respondent: Tri-Level Claims Consultants Ltd. v. Fryer 2002 CarswellOnt 5246 (Ont. S.C.J.), para. 18.

[26] In Ledroit v. Rooplall, 2011 ONSC 2751, Daley J. at paragraph 44 noted and wrote:

The solicitor-client relationship is a fiduciary one, obliging the solicitor to act with strict fairness and openness towards the client. These duties overlay the entire relationship, giving rise to a comprehensive duty of loyalty that ensures the relationship is one of trust and confidence from which flow obligations of loyalty and transparency. The source of the fiduciary duty is not the retainer itself but rather all the circumstances, including a retainer, which creates the relationship of trust and confidence: 3464920 Canada Inc. v. Strother, 2007 SCC 24 at para. 34.

[27] Ledroit v. Rooplall, 2011 ONSC 2751, Daley J. at paragraph 47 noted and wrote:

The rendering of legal services is not simply a matter of contract. A retainer is not a purely commercial engagement; it is a contract of a special character governed by equitable considerations tempering the application of strict contract law: Jean Estate v. Wires Jolley LLP, 2009 CarswellOnt 2250 (C.A.) at par. 82; Zipchen v. Bainbridge, 2008 CarswellSask 429 (C.A.) at paras. 64 and 83.

[28] In the context of retainer agreements that have not been reduced to writing, Justice Hoilett stated in the Ellyn-Barristers v. Stone, 2006 CanLII 9703 (ON SC) (affirmed 2007 ONCA 565):

… where a solicitor fails to reduce his or her retainer to writing, and a dispute arises, there is a heavy onus on the solicitor to satisfy the court that his/her version of its scope ought to be preferred. (ref. Griffiths v. Evans, [1953] 2 All E.R. 1364 (Eng. C.A.)).

The Question:

[29] I broke the question down as follows:

a. Did paragraph 7 of the Retainer permit or authorize Mr. Pharand to hire Jan Weir as agent or expert lawyer or in any other capacity to assist or do work on the Leduc file and to charge for Mr. Weir's fees?

b. Did paragraph 10 of Schedule A permit or authorize Mr. Pharand to hire Jan Weir as agent or expert lawyer or in any other capacity to assist or do work on the Leduc file and to charge for Mr. Weir's fees?

c. Did any other agreement permit or authorize Mr. Pharand to hire Jan Weir as agent or expert lawyer or in any other capacity to assist or do work on the Leduc file and to charge for Mr. Weir's fees?

Did paragraph 7 of the Retainer permit or authorize Mr. Pharand to hire Jan Weir as agent or expert lawyer or in any other capacity to assist or do work on the Leduc file and to charge for Mr. Weir's fees?

[30] I conclude that the answer to this question is no.

[31] Paragraph 7 reads:

7. I/we have been advised that you may appoint in your discretion another lawyer or other legal representatives from your office to act on our behalf from time to time throughout the proceedings up to but not including trial.

[32] The assessment officer questioned the application of this paragraph in the same manner as the applicants did, namely that paragraph 7 by its wording only relates to lawyers from the respondent's office.

[33] During the assessment hearing on May 20, 2015, the respondent did point the assessment officer to paragraph 7 of the retainer agreement as part of his response to the issue of retaining Weir. He acknowledged that Weir was not "from his office" but did not complete his explanation.

[34] I do appreciate the respondent's position, namely that it can be read another way. At the time that this retainer agreement was signed, the respondent was a sole practitioner and it was well known he was a sole practitioner to the applicants and as such, the words "from your office" were not to be read as attaching to the alternative of "another lawyer". The word "or" is a conjunction - used to link alternatives. There would be no need for the respondent to have this clause in his retainer agreement and it would make no sense for him to have it as a clause in his retainer agreement if he had no other lawyers in his firm.

[35] However, even if the respondent's interpretation was possible, that is not the end of the analysis. This paragraph by its language relates the appointment of another lawyer to…"throughout the proceedings". In this case, no proceeding had been commenced and/or was ongoing during the time of the respondent's retainer. The services provided by Weir outlined by his accounts did not include acting on the applicants' behalf throughout any proceeding.

Did paragraph 10 of Schedule A permit or authorize Mr. Pharand to hire Jan Weir as agent or expert lawyer or in any other capacity to assist or do work on the Leduc file and to charge for Mr. Weir's fees?

[36] I conclude that the answer to this question is no.

[37] Schedule "A" to the retainer agreement, paragraph 10 provides….

10. THE CLIENTS realize that it may be essential to retain experts and if experts are to be retained, the clients will first discuss with Richard A. Pharand what experts and how much the cost of experts will be, and the clients must pay for the cost of the experts before they are retained.

[38] "Experts" is not defined. The services are not defined nor who may be included.

[39] Looking at the retainer agreement, there is another clause in paragraph 4 that indicates that the applicants will be charged for the services of experts as may be required by the respondent.

[40] Paragraph 7 of the retainer agreement however speaks to the use of other another lawyer or other legal representatives in the case – and the terms "lawyer" and "legal representatives" are used.

[41] There is no specific clause other than paragraph 7 that speaks directly to the appointment of other lawyers but the fact that there is a specific reference to other lawyers or legal representatives and it is made in the context of providing legal services. It does support the interpretation that paragraph 10 is not applicable to lawyers who provide legal services.

[42] The retainer agreement as a whole is about the provision of legal services by the respondent.

[43] It is not clear having regard to the above, what this clause encompasses.

[44] As to the meaning of this paragraph, the applicants' evidence was, in essence, that this paragraph encompassed the retainer of experts like the environmental engineer that had been retained in their case; namely experts to assist with proving the case, and not the retainer of another lawyer to provide them with legal services – which is what they state they hired the respondent for.

[45] I considered that the respondent's affidavit did not set out evidence as to what this paragraph was supposed to mean and/or what he told the applicants it meant, if he did - and/or if Weir was retained pursuant to this paragraph as an expert. The retainer agreement was drafted by the respondent's firm, not the applicants. The respondent was very much aware of the fact that the retainer of Weir and the interpretation of this paragraph were in issue. It could not have been any clearer in my view. I considered that it would have been very important for the respondent to provide facts about the meaning of this paragraph and/or if Weir was retained pursuant to this paragraph.

[46] I further took note of the respondent's motion record, wherein he was seeking to amend the question directing that the only issue to be decided be whether or not paragraph 7 of the retainer agreement authorized him to retain Weir, or in the alternative, whether or not the applicants otherwise agreed that the respondent could retainer another lawyer.

[47] I considered that I have no affidavit of Weir or documents from Mr. Weir that confirm that he was hired as an "expert" for the case.

[48] While the respondent refers to Weir's qualifications and experience in his affidavit material, in terms of Weir's services, the evidence indicates that Weir was retained to assist the respondent in providing legal services to the applicants, services related to seeking injunctive relief; and analyzing and giving advice. The respondent in his affidavit writes that he told the applicants that they needed the advice of a lawyer who was "familiar with interim injunctions" and he needed the assistance of a "specialist" in injunction matters in whom he had confidence. This in my view, constitutes the provision of legal services.

[49] I considered Weir's accounts and the correspondence filed. The accounts suggest that Weir was retained as an agent for the respondent. The five accounts sent by Weir were sent to the respondent and not to the applicants. The reference line used by Weir in each account was "Pharand Agency/Leduc" [emphasis mine]. Account 1312 describes the professional services provided as "advising a nuisance action against adjoining property owners". Account 1316 describes the professional services to include advice, review of pleadings, reports (suggesting revisions), teleconferences with the respondent and the expert, and discussions on relevant issues re interlocutory injunctions. Account 1406 describes professional services to include advising, reviewing expert report, telephone calls with the respondent and review of/have meetings pertaining to a health unit report. The first account numbered 1407 describes professional services including advice, further review of reports, drafting and revising a complaint, dealing with emails and considering alternative remedies. The second account numbered 1407 describes professional services including advice and several emails, conversations reviewing reports, and opinion. The accounts in my view and emails filed reflect a picture of two counsel working together on, and/or of Weir providing legal services.

[50] Finally, looking at the purpose for which the respondent states Weir was consulted, and the supporting material filed regarding Weir, there was insufficient evidence to classify Weir as an "expert lawyer" in nuisance claims and/or injunctive relief despite the website reference to Weir as being "recognized as an expert in commercial litigation" and/or as an author of business law text. I noted that his services are advertised as small and medium business litigation, contract disputes, shareholder disputes, matrimonial litigation, asset valuation, and wrongful dismissal.

[51] If I am wrong, I considered that there are three components to the operation of paragraph 10, namely, the discussion about retaining an expert, a discussion about the cost of the expert, and the clients paying for the cost of the expert before the expert is retained. The applicants state that when the expert engineer was retained, the parties talked about the expert and the cost of the expert, and they provided the cost in advance. These steps they state did not happen with the retainer of Weir's services. They did not pay anything upfront for Weir. Without further explanation (of which I received none from the respondent - on this third component), I find that the retaining of Weir was not established as being in accordance with the components of this paragraph, if Weir was in fact being hired as an "expert" pursuant to this paragraph.

Did any other agreement permit or authorize Mr. Pharand to hire Jan Weir as agent or expert lawyer or in any other capacity to assist or do work on the Leduc file and to charge for Mr. Weir's fees?

[52] I conclude that the answer to this question is yes.

[53] Paragraph 1 of the retainer agreement states:

1. I/we hereby authorize and retain you to act on our behalf with respect to the matters referred to in Schedule "A" attached hereto and to take such action as you may deem advisable and as I/we may instruct either orally or in writing.

[54] Under this paragraph, the respondent is permitted to take such action as he deems advisable and the applicants may instruct orally or in writing.

[55] It is clear there is nothing in writing establishing in clear language that the respondent deemed it advisable to retain Weir and that the applicants instructed the respondent to retain Weir. I agree it would have been preferable for the respondent to do this, but based on the wording of this paragraph, oral instructions are acceptable.

[56] I am satisfied that the evidence sufficiently establishes that at some point in time during the course of acting for the applicants, the respondent deemed it advisable to seek the assistance of Weir; that he and the applicants had one or more conversations about Weir; that the applicants were aware that Weir was providing assistance to the respondent/them; that Weir was working on their case; and that they consented and approved of Weir providing assistance/ work on their case.

[57] As to Weir, the respondent states that he advised the applicants that they needed the advice of a lawyer who was familiar with interim injunctions; that he knew such a lawyer, namely Jan Weir; that they could look up his credentials on his website; that they were aware that he needed the assistance of a specialist in injunction matters in whom I had confidence; that he informed them that Jan Weir had been a litigation partner at Stikeman Elliott and the author of a business law text book; and that he informed them that he knew Weir to have considerable experience in injunction matters.

[58] The respondent asserts and states that the applicants consented and that they exchanged many emails with Weir. The respondent provided the court with some but not all of the email correspondence to support his assertions. The respondent was adamant and repeated that the applicant's knew he was consulting and retaining Weir.

[59] The applicants in their first affidavit stated that during the course of the retainer, the respondent mentioned that "he had a friend named Jan Weir who was a really good lawyer whom he could call on for help". The applicants stated that they had never discussed retaining Weir with the respondent; there had been no discussion about Weir's specific expertise, rates, expected cost; nor had they been required to pay for Weir's services in advance. They asserted that the retainer was without their knowledge and without proper consultation with them; and that the respondent's actions were contrary to their retainer. My reading of the affidavit is that they asserted that the respondent's misrepresentation of his expertise lead to the retainer of Weir – not any agreement they had with the respondent.

[60] The applicants in their second affidavit filed, stated there was no disagreement between the parties that the applicants knew that the respondent was "talking" to Weir about the issues involving the dispute and that Weir was sent and copied on some emails. In this affidavit they stated that the only time that they were provided with any indication that they were expected to pay for Weir's services was after the respondent's retainer was terminated – which by the materials filed was sometime after March 25, 2014.

[61] Although prior to the hearing the applicants prior were appearing as self-represented parties, it is clear from the evidence that they had the advice of and assistance of counsel in respect of preparing their materials.

[62] I reviewed a copy of an email stream for February 13, 2014. The initial email is sent by J. Leduc. She copies Weir and the expert engineer on the email. The respondent replies. He copies Weir and his assistant. The initiating email poses among other things "you told me you could do this yes or no" and J. Leduc is questioning why the case is so complicated.

[63] I reviewed a copy of an email stream for February 14, 2014. Essentially these emails reflect that J. Leduc forwarded an email to both the respondent and Weir, concerning a septic certificate relevant to the applicants' case.

[64] I reviewed an email stream for February 20, 2014 and February 21, 2014. The February 20, 2014 email is an email from Weir. In the February 21, 2014 email the respondent is directing the applicants to look up Mr. Weir's website and the language used is "we are trying to get the best evidence before the judge". The indication by the use of this language is that Weir is assisting and/or working with the respondent on the case. This email also seems to contradict the applicants' affidavit materials which assert that there were no discussions about Weir's specific expertise. This stream supports the respondent's contention that it was discussed, and that as a result he referred the applicants to the website.

[65] I reviewed an email stream dated February 26, 2014. The final email is an email from J. Leduc. It contains an earlier message from the respondent regarding steps that Weir and the respondent had taken and what he was proposing to do. The language in the email again indicates that Weir and the respondent were both physically working on the case and/or the respondent was being assisted by Weir.

[66] I reviewed an email stream dated February 28, 2014. This stream appears to represent an email chain starting with Weir that was ultimately sent to the applicants regarding a drafted complaint wherein the respondent states "we" need your input - preparing the complaint. The initial email in the chain uses language that clearly suggests that the respondent and Weir are working together and/or Weir is providing assistance in this case beyond "talking" to Weir.

[67] I reviewed an email stream dated March 19, 2014, which includes an email to Weir initiated and written by J. Leduc about information and the claim. In this email she appears to be consulting Weir directly in respect of what she would like to see happen regarding disclosure of information in their possession. This email stream is especially noteworthy in my view, as it includes a forwarded statement written by J. Leduc that includes Weir that states 'GO GET THEM GUYS' ….in the context of the claim.

[68] I reviewed an email stream dated March 20, 2014. This is a stream of three emails. It is copied to Weir. There is a noteworthy statement written by J. Leduc that reads "I also want you to consider retaining a % off awarded damages to make this happen and Jan Weir can be brought in full time if necessary".

[69] After reviewing all of these emails I found it very difficult to accept as true or reasonable, the applicants evidence that they knew only about "discussions" or that the respondent was "talking" with Weir and/or that he was merely a friend that the respondent could call on for help, at no charge.

[70] I have no evidence from the applicants responding directly to these specific emails, other than they state that they never denied there were "discussions" and/or that the respondent was "talking" to Weir, and that Weir sent and was copied on some emails.

[71] I find that the emails reflect knowledge of an involvement in the case by Weir beyond mere "discussions" and "talking"; that they were aware of and consented to Weir assisting or doing work on their case. There was direct communication with Weir initiated and written by J. Leduc. The email about bringing in Weir "full-time if necessary" cannot be ignored. The statement would not have been written (nor would it make sense) to instruct counsel to bring in another counsel full-time if one had never consented or approved of that counsel being brought in on the case in the first place.

[72] As whether or not I accept that Weir could have been thought by the applicants to be providing assistance without charge, I noted that it was not stated in J. Leduc's first affidavit, that she "was well aware that lawyers often contact friends with varying expertise for assistance without charge". This appeared in her second affidavit. I have difficulty with this statement and how it was communicated. No substance was provided to me to assess this statement. The applicants in my view cannot be given preference for vague and bald statements. The applicants' argument that the reference in the respondent's materials to the respondent having received some assistance as a courtesy from another lawyer (not Weir) at no cost constituted evidence and/or established this possibility was far reaching, having regard for the facts of this case including the services that were provided by Weir, and the information the applicants had/knew about the services. The emails are detailed that opinions were being provided, research was being done, conversations were being had with experts, draft documents were being prepared, etc.

[73] I reviewed the September 9, 2014 assessment hearing transcript which was certified to be an accurate transcription and filed by the applicants. J. Leduc addressed the assessment officer on this date and stated that she:

"never knew how much we were paying for another lawyer for. I knew what Mr. Pharand's fees were but I never knew until February or beginning of March of 2014 what the actual fee for the other lawyer was. Actually, when my husband asked, he was quoted – the response was, 'I'm not sure. Something similar to mine.'"

I find that these statements to the assessment officer noteworthy and that they contradict J. Leduc's affidavit wherein she states that there had never been any discussions about rates or fees; and that the applicants did not know that they were going to be charged until after the respondent's retainer was terminated. Her statement supports that there was a conversation between the applicants and the respondent– that it related directly to Weir – that it was before the termination – that it was about rates – that they knew the rate was similar to the respondent's – which rate they knew – which rate is set out clearly in the retainer agreement, namely $450 per hour. Weir's rate was in fact similar - $400 per hour.

[74] Based on the above, I find that the respondent may put the charges incurred by him for Weir before the assessment officer in accordance with the retainer agreement.

[75] As to the amounts Weir charged that the respondent charged to the applicants, I state very clearly that the amounts payable will be a matter for the assessor to determine after a hearing all of the appropriate evidence.

THE MOTIONS

Are the Motions Still Live?

[76] The respondent argues that the motions were dealt with and as such the relief being sought amounts to an abuse of process.

[77] I find that the motion requests to strike materials filed or to remove motion materials from the court file were rendered non-issues by Del Frate J.'s April 21, 2017 sealing order. Further and additionally, I note that the sealing order granted was framed as alternative relief to the said "striking and removal" relief requested. For these reasons, I will not address these requests/arguments and/or the application of solicitor-client privilege law in relation to these requests.

[78] In respect of the applicants' motion requests that the file be sealed "for an appropriate period of time", I find that this issue was dealt with. The case came before Del Frate J. on April 21, 2017. I looked at the endorsement for this date and the order. They both reflect that, on this date, on consent, he ordered that the entire file be sealed and that it be sealed until further order of the court. He put the remaining issues that were before him that day to the long motion hearing date, namely August 9, 2017. I find that Del Frate J.'s order is clear. I have not been provided with a transcript of this court appearance that would suggest otherwise. Del Frate J.'s said order was not appealed. Finally, I note that there is no further order of the court in this file unsealing the file. Based on Del Frate J.'s order, anyone who wishes to access the file would require an order of the court.

[79] As to the remaining relief, I have reviewed all of the endorsements filed and the orders. I find no indication that the issues of contempt and/or breach were considered and determined. The order of Hennessy J. dated October 7, 2016 adjourned the contempt motion without a date. The March 23, 2017 Hennessy J. order is silent as to the status of motions. The Del Frate J. April 21, 2017 order provides "that the remaining issues are to be dealt with at the long hearing date being August 9, 2017 at 10:00 a.m. I was not provided with a transcript of the October 7, 2016 or March 23, 2017 or April 21, 2017 court appearances to guide me otherwise.

[80] As such, I am satisfied that remaining motion relief requested regarding contempt in respect of the June 10, 2016 order and breach of the October 7, 2016 order was properly before the court. Further, I am not of the view that the applicants were using the litigation process to obtain relief other than as claimed or to obtain any wrongful advantage against the respondent for wrongful purpose.

CIVIL CONTEMPT FOR BREACH OF THE JUNE 10, 2016 ORDER

Law

[81] Regarding the test for civil contempt, the Court of Appeal for Ontario in the case of Greenberg v. Nowack, 2016 ONCA 949, stated the following at paras. 25, 26 and 32:

[25] The test for civil contempt was articulated by the Supreme Court in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 33-35:

1. The order alleged to have been breached must state clearly and unequivocally what should and should not be done;

2. The party alleged to have breached the order must have had actual knowledge of it; and

3. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels.

[26] Each element of civil contempt must be proven beyond a reasonable doubt: Carey v. Laiken, at para. 32. A judge has discretion to decline to make a contempt finding where the three-part test has been met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order: Carey v. Laiken, at para. 37.

[32] On a motion for contempt, it is proper for a court to emphasize the goal of engaging compliance rather than punishment: Chiang (Re), 2009 ONCA 3, 93 O.R. (3d) 483, at para. 11. Civil contempt is regarded primarily as coercive rather than punitive: Carey v. Laiken, at para. 31, citing Injunctions and Specific Performance, at para. 6.100.

The Order

[82] Hennessy J.'s June 10, 2016 order states:

2. THIS COURT ORDERS that the recent affidavit served by counsel for the respondent shall not be filed.

3. THIS COURT ORDERS that material filed on this matter should relate only to the retainer/agreement question.

Analysis

[83] I find that contempt has not been proven beyond a reasonable doubt.

[84] In respect of paragraph 2 of the order, the "recent affidavit", refers to the June 8, 2016 affidavit. The respondent did not file this specific affidavit. It is not disputed that the respondent filed a similar affidavit, but the fact remains it is not identical. In respect of paragraph 2 of the order, the filing of the June 8, 2016, the same affidavit, would have amounted to contempt applying the test.

[85] As to paragraph 3 of Hennessy J.'s order, the applicants argue that the respondent's July 20, 2016 affidavit was replete with personal observations, irrelevant and detailed legal advice, material which the applicants allege clearly violates solicitor-client privilege, and does not properly respond to the issue as framed by Hennessy J.

[86] I think it is important to note that according to the transcript for June 10, 2016, Hennessy J. did not have the June 8, 2016 affidavit before her when she made the order – it had not been filed.

[87] I think it is also important to note that the applicants made only two complaints about the June 8, 2016 affidavit, namely: the inclusion of paragraph 31 and the March 25, 2014 letter.

[88] The applicants asked for paragraph 31 and the letter to be removed. Hennessy J. did not order that. She chose to order that the affidavit not be filed. She expressed her views about solicitor-client privileged material and how that should be dealt with. She also expressed concern about the inclusion of personal observations and remarked that same would have no business in an affidavit for this case. On the issue of solicitor-client privilege, Hennessy J. made a note that the applicants were not waiving solicitor-client privilege. However, I noted that Hennessy J. clearly stated that if the respondent "felt that he needed a waiver [of solicitor-client privilege] to respond, he could make that request of the court".

[89] These facts are important because they reflect that the June 8, 2016 affidavit was not closely analyzed in any way at the June 10, 2016 appearance or objected to other than with respect to those two said items. To argue that the similarity between the two affidavits is a factor in the contempt analysis is not reflective of these facts.

[90] These facts are also important, because even though it would be fair to say that the inclusion of solicitor-client privileged information was raised as an issue and somewhat addressed by the court, from the standpoint of analyzing contempt and the test, the fact remains that Hennessy J. chose not to make any order about the filing of solicitor-client privileged materials in respect of future filings. She decided to make a note that the applicants were not waiving solicitor-client privilege, and left it to the respondent to seek a waiver if he felt he needed one. The respondent has been quite clear in expressing that he did not feel he needed one and why. Whether or not he is wrong about that is not an issue for me to decide on the contempt motion. The order Hennessy J. chose to make for future filings was "that the material filed on this matter should relate only to the retainer/agreement question".

[91] Again, as to solicitor-client privilege concerns, I do not see violation of solicitor-client privilege as the consideration for the contempt analysis for paragraph 3. The clear and unequivocal wording of the order is "the material filed on this matter should relate only to the retainer/agreement question". If the material filed relates to determination of this question, then there is no contempt. I recognize the applicants concerns regarding solicitor-client privilege, however, I have found that Hennessy J. had not made a clear and unequivocal order prohibiting the filing of solicitor/client privileged information/documents.

[92] As to personal observations, the applicant's pointed to Mr. Longstreet concurrence with Hennessy J. on June 10, 2016, about the inclusion of "personal observations". First, after reviewing the June 10, 2016 transcript, in my view it is quite clear that Hennessy J. was speaking to, and the context/background for her comment was with respect to paragraph 31 of the June 8, 2016 affidavit – personal observations related to the applicants that the respondent had made. Paragraph 31 did not re-appear in the respondent's July 20, 2016 affidavit. Finally based on my review of the July 20, 2016 affidavit, I do not agree that the July 20, 2016 affidavit contains personal observations related to the applicants, that fall into the category of concerns that were raised by the applicants before Hennessy J.

[93] As to the paragraphs and exhibits that can be said to contain legal advice and opinions and/or are viewed by the applicants as not being proper response to determination of the question, I start by stating generally, that I am of the view that knowing the background - knowing what the respondent did and told the applicants - is relevant to and related to determination of the question. This background is relevant to assessing what, if any, agreement or instructions may have occurred and why. This background also provides a response to the allegation that the retaining of Weir resulted from the respondent's misrepresentation of his expertise. The subject paragraphs and exhibits provide background as to why there may have been a discussion about injunctive relief, which in turn could have led to a discussion about Weir assisting the respondent. These paragraphs and exhibits further provide background to examine the relationship between the parties and the level of informing that went on in the relationship which directly responds to the applicants' assertions of a failure to consult them and/or lack of discussions about retaining Weir, his expertise, his work on the file and/or his rates. These paragraphs and exhibits provide background to what the respondent may have deemed advisable and why. Finally, these paragraphs provide background and details as to what work was done by Weir to analyze the nature of Weir's work and whether it reflected the assistance that the respondent alleged he told the applicants was needed.

[94] I find that paragraphs 3, 5, 6, 7, 8, 9, 10, 11 and 15 address relevant background that led to the respondent's statement that he advised the applicants that they needed the advice of a lawyer who was familiar with interim injunctions. Reading paragraphs 12 to 17 together, they progressively set out the issue of the injunctive relief being obtained and lead up to what the respondent says the applicants were aware of.

[95] I find that paragraph 18 and the emails that were filed as Exhibit B related to determination of the retainer/agreement question. They were filed to support/establish the knowledge of Weir's involvement; the extent of that involvement; and to support the respondent's contentions that the applicants' consented to/approved and to what extent. In my view, the use of the full email streams were relevant to the foregoing.

[96] I find that paragraphs 19 to 31 addressed the assertions raised by the applicants. I find that the applicants directly related the retainer of Weir to what they viewed as a misrepresentation of expertise by the respondent; and a failure by him to consult them as clients; and not as a result of any discussions or agreement involving them. These allegations started before the assessment officer as demonstrated by the transcripts. This position was carried into the application materials brought before this court. The applicants took no steps that I was made aware of to confirm to the respondent that these particular allegations were not going to be raised in the determination of the question.

[97] The applicants' statements about misrepresentation of expertise and failure to consult them, casted doubt about the respondent's honesty; the relationship, and his transparency. The applicants were clearly asserting that it was the respondent's misrepresented expertise that resulted in excessive fees in which included the fees of Weir.

[98] In fact, the applicants continued to repeat these allegations in affidavits filed after Hennessy J.'s June 10, 2016 order, which included statements such as "there was concern that the respondent had misrepresented his expertise", and concerns that "he had failed to properly consult" them as clients. These references appear in the affidavit material of J. Leduc sworn August 3, 2016 and February 27, 2017. Further, the application record filed July 25, 2017 contained two copies of the complete transcript of the May 20, 2015 proceedings and one copy of the September 9, 2014 proceedings before the assessment hearing officer which included such allegations; two of which were filed after Hennessy J's order. Given the foregoing, I do not accept the assertion that response to this does not relate to or is not proper response to the determination of the question.

[99] As to the opinion letter of March 25, 2014 attached as Exhibit C to the respondent's July 20, 2016 affidavit, I appreciate the applicant's concerns. However, I find that the letter does refer to consultation with Weir and would accordingly outline the results of that. Further, this letter relates to the applicants' allegation of misrepresentation of expertise that led to the hiring of Weir. The applicants referred directly to the letter in their initial affidavit. They set out portions of what was being stated in the letter. They went further to state how very upset they were with the contents of the letter. In my view, the applicants in essence suggested that as a result of receiving this letter it was now clear that the respondent did not have the necessary expertise that he had allegedly assured them that he had.

[100] I acknowledge that the applicants stated clearly that they had no intention to sue the respondent for negligence, but they did not remove this allegation from the context of their materials filed for determination of the question and they specifically related the issue of alleged misrepresentation of expertise directly to the retaining of Weir.

[101] Further, I am not satisfied that the respondent intentionally breached paragraph 3 of the June 10, 2016. The affidavit of the respondent sworn September 26, 2016 details the respondent's work experience and that he had been called to the bar 47 years ago. He is Queen's Counsel. He sets out that he did not wish to jeopardize the applicants' claim and that he wanted the file sealed. The respondent sets out clearly that he had no intention to be in contempt and that he holds the court in high regard. The respondent makes his reason clear for his filings - that the applicants had filed materials for the matter alleging he made misrepresentations in relation to this application before the court and as such, that he was entitled to respond relying on law he wanted to put before the court. I accept that the respondent believed that defending himself in respect of the allegations of misrepresentation of expertise required a response for reasons already explained.

[102] I do not agree that the respondent's motion and the supporting material filed with it, support a finding of the intent required by part three of the test for civil contempt. This motion material demonstrates to me that the respondent honestly felt he did not need a waiver in respect of solicitor-client privileged information and why. I further do not categorize the respondent's motion materials as an intentional attempt to go behind the June 10, 2016 order. I accept and the evidence supports that the respondent was seeking direction and clarification regarding an order that was made on a "speak to" date, on issues which he was not given notice would be argued, and for issues which he did not feel he had been provided with full opportunity to respond to/argue.

BREACH OF THE OCTOBER 7, 2016 ORDER and MARCH 23, 2017 ORDER

March 23, 2017 Order

[103] In argument, the applicant sought relief related to an alleged breach of Hennessy J.'s March 23, 2017 order. At the time I heard this motion, the full file was not available to me. I have since reviewed the file that I was provided. There is no formal motion in the file that seeks such relief. In the event, that I am wrong, I note that the order requires the respondent's counsel, not the respondent to complete the action set out in that order, namely to write to the applicants by April 13, 2017 regarding redacting the affidavit and documents to be sealed. A letter from Mr. Longstreet to the applicants dated March 29, 2017 was filed. I find that this letter complies with the order and there was no breach. I find it to be clear as to what was being suggested in respect of the redacting of the affidavit and/or the sealing of documents. The letter outlines the paragraphs of the affidavit and the exhibits, and makes a proposal regarding same. I have no evidence from the applicants that this letter was not received by them. I further noted that the applicants chose not seek relief as against Mr. Longstreet personally from the correspondence filed by the respondent. Mr. Longstreet and/or his counsel did not attend the hearing set for the motions.

October 7, 2016 Order

[104] In the motion, the applicants seek an order finding that the respondent and/or his counsel breached Hennessy J.'s order of October 7, 2016, paragraphs 6 and 7. At the hearing they seek this as against the respondent only.

[105] I decline to grant this request.

[106] Paragraphs six and seven of Hennessy J's October 7, 2016 order state:

6. THIS COURT ORDERS that Respondent's counsel is to identify the specific documents or pleadings with he proposes to be sealed and serve the applicants by October 14, 2016. The applicants may consent to this list or file objections by October 21, 2016.

7. THIS COURT ORDERS that the consent or proposal and objection are to come to the Honourable Madam Justice P.C. Hennessy by October 28, 2016, who will authorize the sealing.

[107] First, I noted that the applicants chose not to seek a declaration/finding that Mr. Longstreet in his personal capacity breached the October 7, 2016 order (confirmed by letter from applicants' counsel to Mr. Longstreet's counsel dated July 27, 2017). The respondent was represented during all of the applicable time frames by Mr. Longstreet. The obligation in paragraph 6 was clearly placed on Mr. Longstreet, yet the applicants seek a finding only against the respondent. There is no evidence suggesting that the respondent was not relying on Mr. Longstreet as his counsel to complete the actions required by the order or that he instructed Mr. Longstreet to act otherwise.

[108] The affidavit of law clerk, Paula St. Jacques, a clerk with Mr. Longstreet's firm, attached the two letters sent to the applicants dated October 11, 2016 and October 19, 2016 respectively from Mr. Longstreet, which affidavit was filed in response to allegation of breach of the order.

[109] I noted that the applicants in fact acknowledged that Mr. Longstreet wrote to them but categorized his response to this order as "dealing with some of the issues". I do not concur with the categorization that Mr. Longstreet wrote to the applicants only "dealing with some of the issues".

[110] The October 11, 2016 letter in my view, is without a doubt, a proposal that identifies specific documents or pleadings to be sealed. This letter was prepared directly in connection with the order, as it is referred to within the body of the letter, and in fact, a copy of the endorsement is referred to as being enclosed. Mr. Longstreet used very clear language and suggested that the affidavits in their entirety be sealed and suggested that fresh affidavits be filed focused on the retainer of Weir. I acknowledge that the letter was sent on a without prejudice basis but the fact of the matter is, that it complies with what was ordered to be delivered – identification of the specific documents or pleadings which he proposed be sealed.

[111] The October 19, 2016 letter sent to the applicants from Mr. Longstreet replies to a letter sent by the applicants. In this said letter there is no withdrawal or change suggested by Mr. Longstreet to the October 11, 2016 proposal he made and in fact, Mr. Longstreet refers back to this letter it appears when he writes "With respect, I submit that my previous correspondence outlines the simple common sense fashion to deal with the Jan Weir issue."

[112] After reading Mr. Longstreet's said letters, I had great difficulty understanding and accepting as genuine, the applicants' statement that they "were left in the completely frustrating position of not knowing what, if anything, Mr. Longstreet had proposed" and "therefore unable to reply for the purpose of consenting or filing an objection to bring to the attention of Hennessy J.

[113] As to paragraph 7, there is no named party set out as being responsible for getting the consent or proposal and objection to Hennessy J.

ORDER

[114] In conclusion, I order and/or direct as follows:

1. The answer to the question formulated by Hennessy J.'s June 10, 2016 order is that the retainer agreement permitted/authorized the respondent to hire Jan Weir to assist/provide legal services on the applicants' file, and as such, to charge for Jan Weir.

2. Determination of the amounts payable to the respondent in respect of Jan Weir is referred to the assessment hearing officer assigned to conduct the assessment hearing related to the respondent's accounts, court file no. 12681/14.

3. The said assessment hearing which was adjourned sine die by the assessment hearing officer on May 20, 2015, may be brought back on by either party on fifteen days written notice to the other.

4. The applicants' motion for a civil contempt order against the respondent for breach of Hennessy J.'s order dated June 10, 2016 is dismissed.

5. The applicants' motion for an order finding that the respondent and/or his counsel breached Hennessy J.'s order of October 7, 2016 is dismissed.

6. The application, and all motions filed in this proceeding are now completed in their entirety, except the issue of costs as addressed below.

7. The order of Del Frate J. dated April 21, 2017 is not altered by this order in any way.

8. If the parties are not able to resolve the issue of costs, brief written submissions may be made to me, delivered to the care of the Sudbury trial co-ordinator, within 30 days of today's date, failing which, there shall be no order as to costs.

Rasaiah J.

Released: November 6, 2017

CITATION: Leduc v. Pharand, 2017 ONSC 6690

ONTARIO

SUPERIOR COURT OF JUSTICE

RENE LEDUC AND JULIE LEDUC

– and –

RICHARD A. PHARAND

REASONS ON application and motions

Rasaiah J.

Released: November 6, 2017