CITATION: SALYANI v. BANK OF NOVA SCOTIA, 2017 ONSC 955

COURT FILE NO.: CV-15-538534

MOTION HEARD: DECEMBER 22, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zainab Salyani v. Bank of Nova Scotia

BEFORE: MASTER R. A. MUIR

COUNSEL: Douglas O. Smith for the defendant/moving party H. A. Fancy for the plaintiff/responding party

REASONS FOR DECISION

[1] This is a motion brought by the defendant seeking an order removing the lawyer for the plaintiff. The defendant takes the position that the plaintiff’s lawyer will be a necessary witness at the trial of this action. The defendant also alleges that the plaintiff’s lawyer is in a conflict of interest given the nature of the allegations in this proceeding.

[2] The plaintiff is opposed to the relief sought by the defendant. The plaintiff argues that at this stage there is very little likelihood that the plaintiff’s lawyer will be a witness at trial and denies there is any conflict of interest. The plaintiff submits that her right to choice of counsel is important and should be respected.

BACKGROUND

[3] The plaintiff is an employee of the defendant. She is currently on disability leave. On December 3, 2007 the plaintiff fell in the parking lot of the branch of the defendant located at 2175 Sheppard Avenue East, Toronto (the “Premises”) while she was on her way to work. On January 13, 2009, the plaintiff commenced a tort action against the owner/occupier of the Premises (the bank’s landlord) and against her insurer for long term income protection benefits. The owner of the Premises added its winter maintenance contractor as a third party. Mr. Fancy acted for the plaintiff in connection with the 2009 slip and fall action.

[4] The plaintiff’s claim against her insurer was settled in September 2009. The remaining claims were settled in September 2014 for $275,000.00 plus $75,000.00 for costs.

[5] As part of the defendant’s response to the plaintiff’s slip and fall event, certain employees of the bank prepared an incident report dated December 3, 2007. A copy of the report was apparently received by Mr. Fancy on March 31, 2011 when it was disclosed by the defendants in the slip and fall action. The report stated, in part, that the plaintiff “fell when trying to climb over a hill (pile) of snow to get onto parking lot at 2175 Sheppard Avenue E. Toronto Ontario”.

[6] The incident report resulted in a significant amount of discussion and debate between Mr. Fancy and employees of the defendant. The plaintiff’s position was that the report was inaccurate as the plaintiff was not trying to get onto the parking lot. Rather, the plaintiff was already on the parking lot. Mr. Fancy asked the bank to amend the incident report to address this issue. The bank refused to do so.

[7] After settling the tort action, the plaintiff commenced this action against the bank on October 16, 2015. The plaintiff claims damages from the defendant as a result of the allegedly false incident report. The plaintiff alleges that this report became an important document in the liability defence advanced by the defendants in the slip and fall action. The plaintiff’s position is that she was forced to settle her slip and fall claim for an amount significantly less than she would have received if the incident report had been accurate or at least corrected by the bank. The plaintiff alleges, among other things, that this was a breach of the plaintiff’s contract of employment with the defendant.

[8] The bank takes the position on this motion that Mr. Fancy must be removed for two broad reasons. The defendant submits that Mr. Fancy will be required to give evidence about his various communications with the bank concerning the incident report. It argues that his evidence will also be required in relation to the defendant’s limitation defence and its defence in respect of a release signed by the plaintiff in favour of the bank. Finally, the defendant suggests that Mr. Fancy will be required to give evidence concerning the settlement of the slip and fall action and his conduct of the slip and fall action generally.

[9] The defendant also submits that Mr. Fancy is in a position of conflict with his client. It argues that the plaintiff may have a potential negligence claim against Mr. Fancy in respect of the limitation defence and Mr. Fancy’s failure to take evidence under oath from bank employees prior to settling the slip and fall action.

LAW

[10] The parties are in general agreement with respect to the law to be applied on a motion of this nature where it is alleged that counsel may be a witness at trial. This law is thoroughly reviewed by Master Glustein (as he then was) in Mazinani v. Bindoo, 2013 ONSC 4744 (Master). At paragraphs 60 and 61 of Mazinani, Master Glustein sets out the relevant principles and the applicable test. The principles can be summarized as follows:

• the court may remove a lawyer who may be a witness in a case where he or she is counsel;

• the court must consider the maintenance of the integrity of the justice system and the high standards of the legal profession and a litigant’s right to his or her counsel of choice;

• the test to be applied is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires the removal of the lawyer;

• the court’s concern about a lawyer appearing as counsel and witness is that it may give rise to a conflict of interest on the part of the lawyer with respect to his or her client or his or her duties to the court;

• courts should be reluctant to make premature orders;

• if there is some doubt or merely potential that a lawyer will be called as a witness at trial, the courts should be more generous in allowing the lawyer to remain on the record and deferring the matter until after discoveries or leaving the matter to the trial judge;

• in view of the expense and potential for delay when orders are made removing lawyers, the courts should only do so in clear cases;

• courts must be slow to interfere with a litigant’s choice of counsel but freedom to choose counsel may be outweighed when the administration of justice would be detrimentally affected;

• certainty that a lawyer will be called as a witness is not required – rather the court must consider the likelihood of the lawyer being a witness;

• it must be established that there is a real basis to believe counsel will likely or probably provide material evidence;

• the court should follow a flexible approach and consider each case on its own merits.

[11] Master Glustein identified the factors to consider as follows:

(i) the stage of the proceeding;

(ii) the likelihood that the witness will be called;

(iii) the good faith (or otherwise) of the party making the application;

(iv) the significance of the evidence to be led;

(v) the impact of removing counsel on the party's right to be represented by counsel of choice;

(vi) whether trial is by judge or jury;

(vii) 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; and,

(viii) the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

[12] I have considered these principles and applied the relevant factors to the facts before me on this motion. I have concluded that Mr. Fancy should not be removed on the basis that he may be a witness at trial.

ANALYSIS

[13] The stage of the proceeding factor favours the plaintiff. Discovery has not taken place. This action has only reached the pleadings stage. It is far from clear what matters will be in issue at oral discovery let alone at trial. The fact that the slip and fall action has resulted in a well-developed record does not assist the court in determining what matters are or will be in issue between the parties to this action. There is also a dispute over privilege and to what extent the plaintiff may have waived privilege by bringing this action. Again, an important issue such as waiver of privilege should await a more complete evidentiary record and not be determined as part of this motion.

[14] The bank acknowledges that the plaintiff fell on the Premises. The parties are in agreement on this point. In view of this, Mr. Fancy’s communications with the bank employees may of very little importance at the end of the day. The incident report states that the plaintiff was trying to get onto the parking lot when she fell. Mr. Fancy asked the bank to correct the report. The bank declined to do so. There appears to be little dispute about this issue at the moment.

[15] It is also unclear whether and how the plaintiff can prove her damages. Mr. Fancy argued that the slip and fall case settled for $275,000.00 but the plaintiff’s experts valued the plaintiff’s damages as significantly more than that. Therefore, the plaintiff is entitled to be paid the difference by the bank as a result of the allegedly false incident report. It is not for me to determine on this motion whether this evidence will be sufficient at trial. Rather, it is simply not clear to me at this stage whether Mr. Fancy’s evidence regarding the settlement of the slip and fall action, and any advice he may have given his client, will be likely or probably necessary at trial.

[16] In my view, I am simply unable to determine, at this stage, whether any of Mr. Fancy’s potential evidence will be significant at trial.

[17] In my view, a removal order at this stage would have potentially serious consequences for the plaintiff. While this is not a complex case, it is obvious that Mr. Fancy has a thorough familiarity with the underlying facts. He acted as the plaintiff’s counsel throughout the previous claim. A steep learning curve would be faced by a new lawyer acting for the plaintiff. There is also some evidence that the plaintiff is of limited means and may have difficulty retaining new counsel.

[18] I do not view the other relevant factors as particularly significant on this motion. There is no jury. There is no special relationship between counsel and the parties. I see no reason at this stage why the trial judge could not make appropriate procedural rulings to address any potential unfairness at trial. There is no evidence of bad faith or an ulterior motive on the part of the defendant in bringing this motion.

[19] Some of the case law appears to suggest that these motions should be brought as soon as possible so as to avoid duplication of effort and wasted time and expense to the responding party. However, in this case the bank has made it clear from the outset that its position is that Mr. Fancy is in a position of conflict and should not be acting for the plaintiff. The bank’s view has been made even clearer by this motion. The plaintiff will be in no position to complain about late notice down the road.

[20] In my view, there simply needs to be a clear evidentiary record of what is really in dispute between the parties and what evidence will be necessary for each side to prove its case. Denying a party her choice of lawyer is a serious matter. It should not be made lightly and only in clear cases. It may cause harm to the plaintiff. At this stage, there is no significant potential of any negative impact on the administration of justice or the integrity of the court process. I am therefore unable to conclude on the evidence on this motion that the defendant has met the applicable test.

[21] I also see no basis for removing Mr. Fancy as the plaintiff’s lawyer on the basis of a potential conflict arising from his client making a negligence claim against Mr. Fancy. There is simply no evidence that the plaintiff has made or even suggested such a claim. It is true, as the defendant argued, that the plaintiff has provided no direct evidence on this motion and has not provided a waiver of any potential conflict. The defendant also points out that there is no evidence that the plaintiff has received independent legal advice about this motion or even knows about this motion. In my view, such direct evidence is unnecessary. The court must assume that Mr. Fancy is acting on instructions from his client. There is no suggestion in the record to the contrary. I am not prepared to deny the plaintiff her choice of counsel on the basis of speculation about a potential negligence claim she may have against her lawyer.

CONCLUSION

[22] For these reasons, the defendant’s motion is dismissed. If the parties are unable to agree on the issue of the costs of this motion they shall provide the court with brief written submissions. The plaintiff’s submissions shall be delivered by February 28, 2017. The defendant shall respond by March 10, 2017. Any reply from the plaintiff shall be filed by March 17, 2017.

Master R.A. Muir

DATE: February 8, 2017