COURT FILE NO.: CV-16-545824

MOTION HEARD: 2018 06 20 and 2018 09 17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ara Papazian and Arpy-Ara Company Limited, applicants

v.

Morris Manning, Q.C. Professional Corporation, Frederick J. Shuh and Shuh Cline & Grossman, respondents

BEFORE: MASTER R.A. MUIR

COUNSEL: Theresa R. Simone for the respondent Morris Manning, Q.C. Professional Corporation Mark Grossman for the respondents Frederick J. Shuh and Shuh Cline & Grossman

Leo Klug for the applicants

REASONS FOR DECISION

[1] The applicants have brought a motion for an order setting aside and quashing a summons to witness issued to Leo Klug, counsel for the applicants. The respondent Morris Manning, Q.C. Professional Corporation (“Mr. Manning”) brings this motion seeking an order that Mr. Klug be prohibited from appearing as counsel on the motion to quash the summons.

[2] Mr. Manning takes the position that it is improper for Mr. Klug to appear as counsel on the motion to quash because Mr. Klug is the source of most of the applicants’ supporting evidence on that motion. While the applicants do not rely on any direct evidence from Mr. Klug, the affidavits and other evidence they are relying upon contain evidence given on information and belief and Mr. Manning argues that Mr. Klug is the main source of that evidence.

[3] Mr. Manning also seeks an order striking out various portions of the applicants’ supporting affidavits on the basis that the evidence in those affidavits does not strictly comply with Rule 39.01(4) of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”) or is otherwise improper as irrelevant, argumentative, scandalous, vexatious, res judicata and otherwise an abuse of the process of the court.

[4] The respondents Frederick J. Shuh and Shuh Cline & Grossman support the position taken by Mr. Manning on this motion. The applicants are opposed.

[5] This is an application under the Solicitors Act, RSO 1990, c. S.15. The applicants seek an order referring for assessment various legal accounts delivered by the respondents.

[6] All of the pending motions in this application have their origin in an appearance by Mr. Klug before Master Wiebe on August 31, 2016. The applicants had brought a motion seeking the production of a document from Mr. Manning. Mr. Manning was not available on August 31, 2016 and Mr. Klug apparently agreed to attend on that day and adjourn the motion to another date. It is alleged that Mr. Klug did not advise Master Wiebe of the agreement to adjourn the motion. Rather, the motion proceeded on August 31, 2016 in Mr. Manning’s absence and the applicants obtained an order for the production of the document and a costs order against Mr. Manning.

[7] Mr. Manning then brought a motion before Master Wiebe on September 20, 2016 and obtained an order vacating the previous order of Master Wiebe based on the alleged failure of Mr. Klug to advise the court of the agreement to adjourn the August 31, 2016 motion.

[8] Following those events, Mr. Manning brought a motion seeking the removal of Mr. Klug as lawyer of record for the applicants and a permanent stay of this application. The removal motion is focused on the alleged misconduct of Mr. Klug.

[9] I have carefully reviewed the evidence before the court on the stay/removal motion, the motion to quash and this motion to preclude Mr. Klug from appearing as counsel on the motion to quash the summons to witness. It is clear from all of the evidence that the stay/removal motion and the motion to quash are almost entirely based on, and revolve around, the statements and actions of Mr. Klug.

[10] The applicants’ primary evidence on the motion to quash is the transcript of the proceedings before Master Wiebe on September 20, 2016. It is placed in evidence on the motion to quash by attaching it to an affidavit sworn by Ara Papazian on February 5, 2018. The information in that transcript goes well beyond simply recording the events of that day. The transcript contains various statements by Mr. Klug about his dealings with Mr. Manning and what happened in court on August 31, 2016 as well as an earlier appearance before Justice Firestone. There is no recording of the appearance before Master Wiebe on August 31, 2016 or the earlier appearance before Justice Firestone. The applicants are purporting to rely on the September 20, 2016 transcript to explain what took place leading up to the August 31, 2016 court appearance as well as to explain what took place in court on August 31, 2016. The fact that this evidence comes from Mr. Klug is made abundantly clear at paragraph (b) of the cited grounds for the motion to quash in the applicants’ notice of motion dated February 5, 2018, which reads as follows:

(b) In that transcript [of the September 20, 2016 appearance], Mr. Klug sets forth in detail what he did and what transpired on August 31, 2016 and the reasons for it.

[11] All of the prior events, communications and attendances involve Mr. Klug. Mr. Papazian was not involved. His February 5, 2018 affidavit simply attaches various documents, one of which is the transcript. It does not provide any substantive evidence with respect to what took place before and on August 31, 2016. Only Mr. Klug can provide direct evidence of those events.

[12] The applicants’ motion to quash also relies on the affidavit of Ara Papazian sworn December 6, 2017 which was delivered in response to the stay/removal motion. The first half of that affidavit simply sets out the background to the events giving rise to this application. Most of the balance of the affidavit deals with the events leading up to the production motion before Master Wiebe on August 31, 2016, the attendance on that day and the events following. That evidence is based on information and belief from Mr. Klug and Mr. Papazian’s review of the September 20, 2016 transcript and other documents from Mr. Klug’s file. The remaining portion of Mr. Papazian’s affidavit deals with prejudice he alleges the applicants will suffer if Mr. Klug is removed as their lawyer.

[13] Of course, the court must first determine whether any grounds exist to remove Mr. Klug before considering the question of prejudice. The only grounds being advanced by Mr. Manning for the removal of Mr. Klug are based entirely on Mr. Klug’s alleged actions and statements. Mr. Manning alleges that Mr. Klug disrespected and misled the court and sent correspondence containing false information to Mr. Manning. It is clear from the applicants’ evidence that Mr. Klug is the source of their evidence in response to those allegations. Indeed, it is obvious from the circumstances of these motions that Mr. Klug is the only person who can provide such evidence. These are the key issues to be considered on the motion to quash and they can only be determined with reference to Mr. Klug’s evidence, either directly or indirectly.

[14] In Manraj v. Bour, [1995] OJ No. 3008 (GD), Justice Kiteley held that it is improper for a lawyer to appear as counsel on a matter where the lawyer is the source of the information concerning an important and contentious matter before the court, even where the lawyer is not the deponent of the affidavit. See Manraj at paragraphs 4 to 6. Justice Gordon referred to such a practice as “unacceptable” in Weber v. Erb and Erb Insurance Brokers Ltd., [2006] OJ No. 1279 (SCJ) at paragraph 39.

[15] There would be absolutely no argument about Mr. Klug appearing as counsel on the motion to quash if he was the deponent of the applicants’ affidavits. It would not be permitted. The authorities make it clear that there is no basis to depart from that clear principle when the lawyer seeking to argue the matter is the source of important and contentious evidence. That is obviously the case here. In fact, Mr. Klug appears to be the sole source of the important and contentious evidence. He would appear before the court as counsel in an effort to persuade the court why he should not have to give evidence on the removal motion for which he appears to be the source of almost all of the applicants’ evidence.

[16] In my view, the authorities relied upon by the applicants are not helpful in determining whether the court should prohibit Mr. Klug from appearing as counsel on the motion to quash. The applicants’ rely on decisions involving motions to remove lawyers of record generally or to prohibit a lawyer from arguing a matter in circumstances where a member of the same firm provided affidavit evidence. Those cases are simply not applicable to the facts before the court on this motion. Here, the lawyer who is the source of the contentious evidence seeks to act as counsel.

[17] For these reasons, I have determined that it is not appropriate for Mr. Klug to appear as counsel on the motion to quash and set aside the summons. Mr. Klug shall be prohibited from appearing as counsel on the motion.

[18] I am not prepared to strike any portion of the affidavits delivered by the applicants in connection with these motions. Mr. Manning argues that various paragraphs offend Rule 39.01(4). That rule allows hearsay evidence on motions where the source of the information is identified and the fact of the deponent’s belief are specified. I agree that certain paragraphs of the applicants’ affidavits may not be drafted so as to strictly comply with this Rule. However, the sources of the information and the fact of the belief is clear from the affidavits when read as a whole.

[19] Other portions of the affidavits are objected to on the basis that they are irrelevant, argumentative, scandalous, vexatious, res judicata and otherwise an abuse of the process of the court. In my view, this aspect of the motion is premature. These arguments are more properly made at the return of the motion to quash or the removal/stay motion. The ultimate order sought in these series of motions is a very serious one. The respondents are asking this court to deny the applicants their choice of counsel and permanently stay this proceeding without a determination on its merits. The applicants should be afforded a full opportunity to respond to this very serious form of relief. As a general rule, the court should not, at least at this stage, limit or prune the applicants’ evidence in this fashion. The relevance and appropriateness (or lack thereof) of the impugned evidence will become clearer as the evidence develops overall with cross-examinations, Rule 39.03 examinations, if any, and as the matters in issue become clearer. While there are conflicting decisions on the question of whether a preliminary motion to strike affidavit evidence should be permitted, the general consensus appears to support the proposition that such orders in advance of the hearing should only be made for special reasons or in the clearest of cases. See Allianz Global Risks US Insurance Co. v. Canada (Attorney General), 2016 ONSC 29 (SCJ – Master) at paragraphs 11 to 19.

[20] I am therefore ordering that Mr. Klug be prohibited from appearing as counsel on the motion to set aside and quash the summons to witness. The balance of the relief on Mr. Manning’s motion is dismissed.

[21] If the parties are unable to agree on the issue of the costs of this motion, they shall provide the court with brief submissions in writing by November 26, 2018. These submissions may be sent directly to me by email.

[22] Counsel shall contact the court and arrange for a further case conference following the appointment of new counsel to represent the applicants in connection with the motion to quash.

Master R.A. Muir

DATE: 2018 10 25