COURT FILE NO.: CV-17-580635
COURT FILE NO.: CV-17-586635
DATE: 2018/12/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Basu Deb Bose, Dr. Prasanta Kumar Sarkar, Ranendra N. Ghosh, Sunil Sengupta, Asish Kumar Ghosh, Sailesh K. Roy, Swapan Kumar Ghosh, Rupa Dutta and Basanti Roy
Applicants
– and –
Bangiya Parishad Toronto (also known as Bangiya Parishad)
Respondent
AND BETWEEN:
Rathin Ghose, Sanjib Mukherjee, Subhra Sur, Apurba Mukherjee, Kobi Banerjee, Anirban Kargupta, Prabais Bengali Cultural Association, and Bangiya Parishad Toronto
Applicants
- and –
Jnan Chowdhury also known as Ananda Chowdhury also known as Ananda Jnan Chowdhury, Ashoke Neogi also known as Ashok Neogi, Arpita Mukherjee, Partha Banerjee also known as Pabi Banerjee also known as Partha Bapi Banerjee, Mrinmoy Bhakta, Ujjal Chowdhury, Nirmal De, Ruby Mukherjee, and Sandip Goswami
Respondents
Wade Morris for the Applicants
Lalit Kalra and Suvendu Goswami for the Respondents
David Morawetz for the Applicants
Lalit Kalra and Suvendu Goswami for the Respondents Jnan Chowdhury also known as Ananda Chowdhury also known as Ananda Jnan Chowdhury, Ashoke Neogi also known as Ashok Neogi, Mrinmoy Bhakta, Ujjal Chowdhury, Nirmal De, Ruby Mukherjee, and Sandip Goswami
HEARD: November 23, 2018
PERELL, J.
REASONS FOR DECISION
Advocates’ Society, Principles of Professionalism for Advocates
An Advocate’s Duty to Opposing Counsel
The proper administration of justice requires the orderly and civil conduct of proceedings. Advocates should, at all times, act with civility in accordance with the Principles of Civility for Advocates. They should engage with opposing counsel in a civil manner even when faced with challenging issues, conflict and disagreement.
Discussion about opposing counsel with others, including clients and the court, is permitted. Reasoned criticism based on evidence of a lawyer’s incompetence or unprofessional acts may be made. Conversely, ill-considered or uninformed comments about opposing counsel should not be made.
Advocates should extend professional courtesies to opposing counsel. Such courtesies include extending assistance, to which opposing counsel are not entitled by law, that does not prejudice their own client.
Advocates’ Society, Principles of Civility for Advocates
RELATIONS with OPPOSING COUNSEL
General Guidelines
Advocates should always be courteous and civil to counsel engaged on the other side of the lawsuit or dispute. It is their responsibility to require those under their supervision to conduct themselves with courtesy and civility as well.
Ill feelings that may exist between clients, particularly during litigation, should not influence advocates in their conduct and demeanour toward opposing counsel.
Advocates should always be honest and truthful with opposing counsel.
Comments Made about Opposing Counsel
Advocates should avoid ill-considered or uninformed criticism of the competence, conduct, advice, appearance or charges of other advocates; however, they should be prepared, when requested, to advise and represent a client in a complaint involving another advocate.
Advocates should not attribute bad motives or improper conduct to opposing counsel, except when relevant to the issues of the case and well-founded. If such improper conduct amounts to a violation of applicable disciplinary rules, however, advocates should report such conduct to the appropriate professional disciplinary authority.
Advocates should avoid disparaging personal remarks or acrimony toward opposing counsel.
A. Introduction
[1] Suvendu Goswami is the lawyer of record for the Respondents in two related applications known as the Lease Application and the Governance Application.
[2] The Applicants seek to have Mr. Goswami disqualified and removed as lawyer of record in both applications.
[3] The Applicants submit that the Mr. Goswami has put his fitness to practice in issue, has numerous conflicts of interest of various types, and that it is necessary to disqualify him to preserve the integrity of our legal system and the proper administration of justice.
[4] I am dismissing the motions and ordering that the Applicants’ pay costs on a substantial indemnity basis – if requested.
B. Facts
1. The Parties
[5] Prabasi Bengal Cultural Association is a cultural association promoting and hosting Bengali cultural events. It is a not-for-profit corporation under the Corporations Act.[^1]
[6] Parishad is a Hindi word for assembly, and the Bangiya Parishad Toronto is a religious organization or congregation. I shall refer to Bangiya Parishad Toronto as the Congregation. The Congregation is a not-for-profit corporation under the Corporations Act and it is a registered charity.
[7] Until recently, the Cultural Association and the Congregation operated as a unity. The Cultural Organization was properly organized as a corporation, but the Congregation was not. However, members of the Cultural Association were de facto members of the Congregation, which technically did not enroll its members or organize its corporate affairs as did the Cultural Association. The By-laws for the Cultural Association were adopted in 1987. Up until June 2016, the by-laws do not mention being applicable to the Congregation.
[8] Since 1980, the members of the Cultural Association, who are the de facto members of the Congregation, have elected a common board of directors. The members of the Cultural Association also elected the presidents of both corporations. The common Board of Directors would then appoint from the Board Members the officers for the two corporations. They produced consolidated financial statements for the cultural organization and for the religious organization.
[9] The Congregation is the registered owner of a property at 140 Millwick Drive in Scarborough known the Tagore Centre. The Tagore Centre had originally been purchased by the Cultural Association in 1987, but in 1992, the property was transferred to the Congregation to benefit from its charitable status.
[10] It is alleged that pursuant to a two-page lease dated February 6, 1995, the Congregation leased part of the Tagore Centre to the Cultural Association. There was no rent charge. In the Lease Application, the Respondents dispute that the Lease actually exists and challenge whether it is enforceable. That matter remains to be determined, but up until the corporate internecine conflict that I shall describe below, the Cultural Association and the Congregation peacefully shared the Tagore Centre.
2. Internecine Conflict
[11] On April 11, 2016, the members of the Cultural Association elected the following eleven Directors: Kobi Banerjee, Partha Banerjee, Ananda Chowdhury, Rathin Ghose, Anirban Kargupta, Apurba Mukherjee, Ms. Arpita Mukherjee, Sanjib Mukherjee, Ashoke Neogi, Jaidev Sarkar, and Ms. Subhra Sur.
[12] Mr. Rathin Ghose was elected to be the President of the Cultural Association and Mr. Ananda Chowdhury was elected to be the President of the Congregation.
[13] For the Cultural Association, the Directors elected Mr. Rathin Ghose’s slate of officers.
[14] So far, so good, and also consistent with the three-decade tradition of co-operation and coordination between the Cultural Association and the Congregation.
[15] Unhappily, internecine conflict then erupted about the election of officers for the Congregation. Mr. Rathin Ghose and a majority of directors opposed the slate of officers for the Congregation that had been selected by Mr. Ananda Chowdhury.
[16] As a result of the dispute, Mr. Chowdhury and a minority group of Directors protested. Mr. Chowdhury, along with Partha Banerjee, Ms. Arpita Mukherjee, and Ashok Neogi discussed what they should do, and by June 2016, they organized a membership enrollment for the Congregation, nullified the election of directors for the Congregation, and formed a new Board of Directors. They were elected directors and new directors were: Mrinmy Bhakta, Ujjal Chowdhury, Nirmal De, Sandip Goswami, and Ms. Ruby Mukherjee.
[17] These actions by Mr. Chowdhury and his allies had the result of establishing what I shall describe as the de facto Congregation.
[18] One or the other of Mr. Chowdhury’s group spoke to lawyers. Ultimately, Mr. Chowdhury hired Mr. Suvendu Goswami to act for what I shall label as “the de facto Congregation.” Mr. Goswami began providing the de facto Congregation with legal advice in the internecine corporate warfare between the not-for-profit organizations.
[19] Pausing here, for reasons that will become apparent later in these Reasons for Decision, it shall be important to note that at this juncture, Mr. Goswami’s client was the de facto Corporation, not the directors of the de facto corporation. Mr. Goswami was retained to act for the de facto Corporation. In this regard, the rules and commentary of the Law Society of Ontario’s Rules of Professional Conduct state:
"client" means a person who:
(a) consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or
(b) having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on their behalf
and includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client's work;
Commentary
[1] A solicitor and client relationship may be established without formality.
[2] When an individual consults a lawyer in a representative capacity, the client is the corporation, partnership, organization, or other legal entity that the individual is representing.
[3] For greater clarity, a client does not include a near-client, such as an affiliated entity, director, shareholder, employee or family member, unless there is objective evidence to demonstrate that such an individual had a reasonable expectation that a lawyer-client relationship would be established.
[20] Returning to the narrative, by June of 2016, there were rival Boards of Directors and rival religious organizations. Who, how, and what was the de jure or lawful Congregation was uncertain. Therefore, I shall refer to the Congregation governed by the board elected in April 2016 as the “April-Congregation” and, as already noted, I shall refer to the Congregation lead by Mr. Ananda Chowdhury as the de facto Congregation.
[21] The board of the de facto Congregation began purporting to govern the Congregation, independently from the Cultural Association. The religious organization was being run by the group that were later to become Respondents in the two applications now before the court; i.e., the Lease Application and the Governance Application. The de facto Congregation instructed Mr. Goswami to take steps to separate the de facto Congregation’s governance from the governance of the Cultural Association.
[22] Meanwhile, Mr. Rathin Ghose and his allies at the Cultural Association opposed the activities of the new board of directors of the de facto Congregation, and in June of 2016, members of the Cultural Association circulated a petition calling for Mr. Ananda Chowdhury to resign as a Director, which he refused to do.
[23] With Mr. Ananda Chowdhury refusing to resign, the Cultural Association responded by calling an extraordinary general meeting of its membership to be held at the Tagore Centre on July 17, 2016. One purpose of the meeting was to have Mr. Chowdhury removed as a Director. The Cultural Association was now making a counterattack to regain governance of the Congregation.
[24] On June 20, 2016, introducing himself as retained by the de facto Congregation, Mr. Goswami wrote Mr. Rathin Ghose to respond to an email message that Mr. Ghose had sent to Mr. Chowdhury. In his letter to Mr. Ghose, Mr. Goswami indicated that the Congregation was distinct from the Cultural Association, since they were separate legal entities. He stated that the Cultural Association could not impose its by-laws and dictate terms to the Congregation. He stated that any attempts to disrupt the democratic function of the Congregation would be vigorously answered. He urged Mr. Ghose to come to a negotiated settlement.
[25] Mr. Rathin Ghose and his allies were not appeased by Mr. Goswami’s letter or by subsequent correspondence.
[26] Meanwhile, Mr. Chowdhury’s group continued in the effort to separate the corporate affairs of the Congregation from the affairs of the Cultural Association. At a meeting of the de facto Congregation on July 10, 2016, an elections officer was appointed, the Board of Directors of the April-Congregation were removed and a new Board of Directors was elected.
[27] Mr. Ghose and Mr. Apurba Mukherjee arrived uninvited at the July 10, 2016 meeting to object to the activities of the de facto Congregation and to warn of consequences. Mr. Ananda Chowdhury deposed that Mr. Ghose threatened to lock the Congregation’s members out of the Tagore Centre.
[28] The next day, on July 11, 2016, the Board of Directors of the April-Congregation passed a resolution that Mr. Goswami was not authorized to represent the interests of the Congregation.
[29] Alarmed by Mr. Ghose’s threat about changing the locks, Mr. Ananda Chowdhury as president of the de facto Congregation responded by instructing Mr. Goswami to retain a bailiff to take the upper hand on controlling access to the Tagore Centre.
[30] Mr. Goswami retained Harvey Greber of S. Wilson & Co. Bailiffs Ltd., and on July 14, 2016, the locks at the Tagore Centre were changed by the bailiff. Mr. Rathin Ghose and the Bangali community were notified of the change of locks.
[31] Unable to enter the Tagore Centre on July 17, 2016, the members of the Cultural Association went to another location, and they passed a resolution that Mr. Ananda Chowdhury should be removed as a director.
[32] After the locks on the Tagore Centre were changed, Mr. Ananada Chowdhury and other Directors of the de facto became targets for threats and hate messages on social media. Mr. Goswami was also targeted with vile messages.
3. The Lease Application
[33] The lockout of the Tagore Centre persisted, but despite negotiations, the dispute could not be resolved, and over a year later, on August 11, 2017, several members of the Cultural Association decided not to wait for the Cultural Association to sort out the governance problems.
[34] Thus, on August 11, 2007, Basu Deb Bose, Ms. Rupa Dutta, Asish Kumar Ghosh, Ranendra N. Ghosh, Swapan Kumar Ghosh, Ms. Basanti Roy, Sailesh Roy, Dr. Prasanta Kumar Sarkar (now deceased), and Sunil Sengupta, commenced an application pursuant to s. 332 of the Corporations Act to regain access to the Tagore Centre. This Application is known as the Lease Application.
[35] The Applicants in the Lease Application sued the de facto Congregation. The Applicants relied on the 1995 Lease Agreement, noted above. The Lease Application was supported by affidavits from Basu Deb Bose, Rathin Ghosh and Mukal Majumdar.
[36] Wade Morris was the lawyer of record for the Applicants in the Lease Application.
[37] The Lease Application was resisted by affidavits from Mr. Ananda Chowdhury.
[38] Mr. Goswami was the lawyer of record for the de facto Congregation.
4. The Governance Application
[39] The dispute about the governance of the Congregation remained unresolved. The Cultural Association did not accept the de facto Congregation as having a lawfully elected Board of Directors. The Cultural Association finally decided to commence proceedings to resolve who governed the Congregation.
[40] On November 16, 2017, the Cultural Association, the April-Congregation, Kobi Banerjee, Rathin Ghose, Aniran Kargupta, Apurba Mukherjee, Sanjib Mukherjee, and Ms. Subhra Sur sued Partha Banerjee, Mrinmoy Bhakta, Ananda Chowdhury, Ujjal Chowdhury, Nirmal De, Sandip Goswami, Ms. Arpita Mukherjee, Ms. Ruby Mukherjee, and Ashok Neogi. This application is known as the Governance Application, and its purpose was to resolve who were the lawful Directors of the Congregation and what was the genuine Congregation.
[41] David Morawetz and John Lo Faso were the lawyers of record for the Applicants in the Governance Application.
[42] Mr. Goswami was the lawyer of record of all of the Respondents with the exception of Ms. Arpital Mukherjee and Partha Banerjee. The de facto Congregation is not a respondent to the Governance Application.
[43] At this juncture, Mr. Goswami had a joint retainer for the de facto Congregation and for the Respondents in their personal capacity as directors of the de facto Congregation. It shall be important to note that Mr. Goswami did not have a retainer from Partha Banerjee, who had been a director of the de facto Corporation.
[44] The Governance Application was supported by affidavits from Kobi Banerjee, Pradipta Data, Rathin Ghose, Anirban Kargupta, Sanjib Mukherjee, and Ms. Subhra Sur.
[45] The Governance Application was resisted with affidavits from Ananda Chowdhury, Nirmal De, Ujjal Chowdhury, Sandip Goswami, Ms. Ruby Mukherjee, and Ashoke Neogi.
5. The Procedural History of the Applications: January to June 2018.
[46] On January 19, 2018, in Civil Practice Court, Justice Firestone set a timetable for the two applications.
[47] The examinations in the Lease Application were to be completed by April 30, 2018, and the Lease Application was scheduled to be heard on May 29, 2018.
[48] Examinations in the Governance Application were to be completed by June 30, 2018, (i.e. after the Lease Application), and the Governance Application was scheduled to be heard on September 17, 2018.
[49] As events have unfolded, neither application has been heard and the parties were unable to keep to the timetable.
[50] The examinations proceeded in the Lease Application. Mr. Morris cross-examined the bailiff, Harvey Gerber, on February 27, 2018. On April 25, 2018, Mr. Goswami cross-examined Swapan Gupta, Mukul Majumder, Ranendra Ghosh, and Pratap Som. Mr. Ghosh’s and Mr. Som’s cross-examination were not completed, and the examinations were adjourned to April 30, 2018. On April 26, 2018, Mr. Goswami cross-examined Basu Deb Bose. On April 30, 2018, Mr. Ghosh and Mr. Som did not reattend nor did Nirmal De, whose examination had been scheduled for that day attend to be examined. Mr. Goswami took out certificates of non-attendance.
[51] Thus, the examinations were not completed by April 30, 2018. The parties blame one another for the failure to comply with the timetable.
[52] On June 5, 2018, Mr. Goswami sent an email message to counsel for the Applicants in the Governance Application proposing to examine Rahin Ghose on June 18 and Sanjib Mukherjee on June 19, 2018 and advising that Mr. Ananda Chowdhury would be available to be cross-examined after June 20, 2018.
[53] On June 6, 2018, Mr. Morawetz for the Applicants in the Governance Application send an email message setting out the following timetable for the cross-examinations:
June 18, 2018
Partha Banerjee
June 18, 2018
Rathin Ghose (for approximately 2 hours by Mr. Goswami)
June 19, 2018
Sanjib Mukherjee (for 4-5 hours by Mr. Goswami)
June 28, 2018
Ananda Chowdhury (by Mr. Lo Faso)
[54] It should be noted that the proposed timetable includes an examination of Partha Banerjee. As noted above, Mr. Banerjee was a Respondent to the Governance Application, but he had not entered an appearance. He was not represented by Mr. Goswami. Mr. Banerjee was disassociating himself from the de facto Congregation.
[55] On June 5, 2018, Mr. Goswami sent an email stating that he agreed to the dates and timetables.
[56] On June 12, 2018, Mr. Morawetz wrote to Mr. Goswami enclosing a notice of examination for Mr. Ananda Chowdhury and confirming the schedule for the cross-examinations.
[57] On June 14, 2018, Mr. Goswami sent the following email message to Mr. Morawetz, which reneged on there being time limits on his cross-examinations:
Please note that I will examine Dr. Sanjib Mukherjee on June 19, 2018. As was the case with Mr. Chowdhury’s examination to be conducted by Mr. Lo Faso on June 28, 2018, there will be no specified time limit of 4-5 hours. As will there will be no time limit of approximately 2 hours for examination of Mr. Rathin Ghose as noted in the table. So please remove any reference to time limits in the table that you provided on June 12, 2017 that I just noticed. …
[58] The same day, Mr. Morawetz responded with a stern letter to Mr. Goswami about the alteration to the schedule. The letter stated:
I acknowledge receipt of your email dated June 14, 2018 at 11:46. In your email you state that you will examine Mr. Rathin Ghose without a time limit on June 18, 2018 and that you will examine Dr. Sanjib Mukherjee on June 19, 2018, also with no time limit. You state further that you “just noticed” the time limits in my e-mail of June 12, 2018. Your claim that you “just noticed” the time limit is preposterous and false. I say this for following reasons:
• On June 5, 2018 at 8:00 PM, you sent me an email in which, inter alia, you propose to examine Mr. Ghose and Dr. Mukherjee on June 18, and June 19, 2018. In your email you state that you “shall devote less than a day with Dr. Sanjib Mukherjee and approximately 2 hours with Rathin Ghose.” I enclose a copy of the email.
• On June 6, 2018 at 1:03 PM, I sent you an email agreeing to proposal. In the said email, a chart is enclosed which clearly sets out the date and person to be examined. It also clearly sets out the length of the examination of Mr. Ghose and Dr. Mukherjee as set out in your email of June 5, 2018. I enclose a copy of the email.
• On June 6, 2018 at 4:10 PM, you sent me a responding email stating that “[t]he dates and timetables are acceptable to my clients. I enclose a copy of the email.
Accordingly, your claim that you “just noticed” the agreed upon time limits today is clearly not true. It was you who proposed the time limits for Mr. Ghose and Dr. Mukherjee’s examination and you already confirmed your agreement.
It is now painfully obvious that you are attempting to engage in the exact same behaviour you undertook during the examinations for the Lease Application which led to the delay in hearing the Lease Application. This will not be tolerated and is a transparent delay tactic on your part. It is regrettable that counsel engage in such conduct.
Accordingly, we will be proceeding as follows: 1. We will examine Mr. Banerjee on June 18, 2018; 2. We will produce Rathin Ghose for Rathin Ghose for approximately two hours on June 18, 2018; and 3 We will produce Sanjib Mukherjee for four to five (4-4) hours on June 19, 2018.
If you fail to attend to examine Rathin Ghose and Sanjib Mukherjee, they will not be produced again without Court order.
We will examine Jnan/Ananda Chowdhury on June 28, 2018 as agreed. If you do not produce Mr. Chowdhury, we will be bring a motion to strike his affidavit.
We will not engage in further correspondence on this matter. You can either show up or not. It is entirely up to you.
[59] In turn, on June 14, 2018, Mr. Goswami responded with an email message and a letter to Mr. Morawetz, which stated:
Stop sending letters and emails which are scandalous and inappropriate. I may have been under the influence of medicines when I wrote those earlier emails. I have three detailed medical notes to prove that since May 11, 2018, I am unwell and not really functional. If I wish, I can ask for adjourning the upcoming examinations on medical ground. However, I am up for finishing the matters more you do.
The previous examinations that you allude to were done expeditiously and competently without any delay from my side or my client’s side. The record should speak for itself. So, do not write again that I engaged in delay tactics or I made false statements. You and Mr. Morris delayed the proceedings with your two separate private meeting and failing to appear for examination of April 30, 2018.
I will try to finish examinations of your clients with the time limit that I may have inadvertently agreed to in the past in a haste. But if you clients do not cooperate, the cross-examinations will continue whether you like it or not. Any improper conduct of examinations by either party, or by the lawyers will be dealt with in accordance with the Rule of Civil Procedure, specifically, Rules 34.14(1), 34.12(2) and 34.15 (1). So, I don’t need your reckless and unprofessional comments.
[60] Pausing here in the narrative, it should be noted that the Applicants submit that Mr. Goswami’s behavior, which they describe as bizarre, and his letter of June 14, 2018 put his fitness to practice in issue.
[61] On June 15, 2018, Mr. Lo Faso wrote a letter to Mr. Goswami and Mr. Morawetz wrote a letter to the Law Society of Ontario.
[62] Mr. Lo Faso’s letter of June 15, 2018 to Mr. Goswami stated:
Your letter of June 14, 2018 causes me real concern. You have put me on notice that you are not well and not functional, and that you have medical reports to prove that. Therefore, in my view, I cannot accept any agreement from you, including and without limitation, to a binding schedule for this court proceeding. The law as referred to in Scherer v. Paletta states quite clearly that a lawyer can bind the client. Unfortunately, I can no longer rely on that case law because you have advised me that you are not well and not functional. Your clients may take the position that they should not be bound by what you advise me if it suits them.
In addition, in view of the fact that you have advised me that you are not well and not functional, I am obliged, pursuant to s. 7.1-3 of the Rules of Professional Conduct, to report you to the Law Society. I also urge you to report yourself to the Law Society.
Please do not take this letter lightly. I suggest that you have a doctor confirm that you are able and competent to practice law at which point I can them communicate with you; failing which, I do not believe that you can act on behalf of your clients.
In light of the fact that you have stated that you are not well and not functional, I cannot produce Mr. Ghose and Dr. Mukherjee for examination on June 18 and 19, 2018. Your clients may later claim that you acted improperly or without authority in conducting those examinations.
We will however be examining Mr. Banerjee as scheduled on June 18, 2018 at 10:00 AM. If are unwell or incapable of acting there is no prejudice to your clients in examining Mr. Banerjee, as if your clients retain new counsel, that lawyer may examine Mr. Banerjee at a later date.
I am also inclined to seek an order at the to be scheduled pre-trial conference that you be removed as counsel of record for the Respondents or bring a motion seeking the same relief.
[63] Pausing here in the narrative, it is helpful to set out the provisions of rule 7.1-3 of the Law Society of Ontario’s Rules of Professional Conduct along with its Commentary which state
Duty to Report Misconduct
7.1-3 Unless to do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer shall report to the Law Society,
(a) the misappropriation or misapplication of trust monies;
(b) the abandonment of a law or legal services practice;
(c) participation in serious criminal activity related to a licensee's practice;
(d) conduct that raises a substantial question as to another licensee's honesty, trustworthiness, or competency as a licensee;
(e) conduct that raises a substantial question about the licensee's capacity to provide professional services; and
(f) any situation where a licensee's clients are likely to be severely prejudiced.
Commentary
[1] Unless a licensee who departs from proper professional conduct is checked at an early stage, loss or damage to clients or others may ensue. Evidence of minor breaches may, on investigation, disclose a more serious situation or may indicate the commencement of a course of conduct that may lead to serious breaches in the future. It is, therefore, proper (unless it is privileged or otherwise unlawful) for a lawyer to report to the Law Society any instance involving a breach of these rules or the rules governing paralegals. If a lawyer is in any doubt whether a report should be made, the lawyer should consider seeking the advice of the Law Society directly or indirectly (e.g., through another lawyer). In all cases, the report must be made without malice or ulterior motive.
[2] Nothing in this rule is meant to interfere with the lawyer-client relationship.
[3] […]
[64] Returning to the factual narrative, Mr. Morawetz’s letter to the Law Society of Ontario, which was copied to Mr. Goswami, stated:
Attention: Complaints Department
Dear Sir/Madam:
We are the lawyers for the applicants in Court File No. CV-17-586635 (“the Application”). Suvendu Goswami (“Mr. Goswami”) acts for the respondents. Yesterday, we received a concerning email and letter from Mr. Goswami. I enclose copies of both. You will observe in the second paragraph that Mr. Goswami states he may be under the influence of medication, is not well and is not functional. This morning, we spoke with a law society practice management staff member who suggested to us that we are obliged to report Mr. Goswami to the law society pursuant to s. 7.1-3 of the Rules of Professional Conduct. Accordingly, we are reporting Mr. Goswami.
Please contact us should you require anything further.
[65] On June 15, 2018, Mr. Goswami sent an email message to Mr. Morawetz, a letter to Mr. Morawetz and to Mr. Lo Faso and an email message to Mr. Morawetz as follows:
Mr. Morawetz,
Unfortunately, I had a fall outside of my office when I had tripped. That happened on May 29, 2018. I am better now. If you want, I can get a doctor’s note to that effect. I shall attend discovery and examinations as scheduled earlier. I am working and there is no need to panic. The Notices of Examination have been served upon you. If you do not make your clients available for June 18 and June 19, 2018, I shall note them in default. I shall attend Chambers Hearing on June 20, 2018, when I shall bring to her Honour’s Notice of your non-attendance on April 30, 2018 and delaying the “Lease Application.” See you at the Court Reporter’s Office on June 18 and June 19, 2018. Thanks,
Attention: David Morawetz/John Lo Faso
Dear Counsel:
This is further to my email of earlier this morning in conjunction with your letter of even date. Unfortunately, I had a fall outside of my office when I had tripped. That happened on May 29, 2018. I am better now. The functionality part that I had referred to in my letter of June 14, 2018 related to the intense bodily pain that followed after my fall. This kind of accident can happen anytime and anyone can be a victim of the same, including you. Prior to May 29, 2018, I had some seasonal allergies and congestion resulting therefrom. I have no other health issues that excited you to write me a rather unusual and self-serving letter. […]
My family physician is on vacation. He is returning back to work on Saturday, June 16, 2018. I shall attend his office tomorrow to get a medical note if you are that anxious to see one. I shall attend discovery and examinations as scheduled earlier. I am working and there is no need to panic.
The Notices of Examination have been served upon you. If you do not make your clients available for June 18 and June 19, 2018, I shall note them in default.
It appears that you are unfairly seizing every opportunity to delay the matter and surely not happy with me representing [the de factor Congregation] and their Directors.
I shall attend Chambers Hearing on June 20, 2018, when I shall bring to her Honour’s Notice of your non-attendance on April 30, 2018 and delaying the “Lease Application.”
I shall see you at the Court Reporter’s Office on June 18 and June 19, 2018 for examinations/discovery, so do not venture to cancel the examinations. Thanking you, Yours very truly.
Mr. Morawetz,
I sent two faxes and two mails earlier today. I also left a voicemail message for you. I expect a prompt response from you. Are you refusing to bring Mr. Rathin Ghose and Dr. Sanjib Mukherjee on June 19 and June 19, 2018 because of their old age and ill-health? I need to know the truth. Thanks,
[66] On June 16, 2018, sent the following email message to Mr. Morawetz:
I shall reply to your frivolous notification to the Law Society likely today, or early tomorrow morning. I am seeing my family physician this afternoon to obtain a medical note that I will send to the Law Society. I shall sue you personally, if necessary, because of your desperate attempts to make out a false case of medical concerns. It is clear that you don’t like my continued involvement in the subject Application, particularly after the disastrous evidence that was elicited in the “Lease Application on April 15, 2018. You, Mr. Morris and Applicants in the “Lease Application” further orchestrated no show on April 30, 2018 when continued examinations of Mr. Pratap Son, Mr. Ranendra N. Ghose and Mr. Nirmal De were to take place. As advised earlier, I shall be in attendance at the Network North Reporting on June 18 and June 19, 2018 to conduct discovery of your clients and participate in the examination of Mr. Partha Banerjee. I want you to disclose to me forthwith what email, phone or other communications you and others in your Law Firm had with Mr. Partha Banerjee regarding his upcoming examinations and other business regarding the subject Application and the “Lease Application.” […] Thanks,
[67] On June 17, 2018, Mr. Goswami sent a fax letter to Mr. Morawetz and Mr. Lo Faso enclosing a note from his family doctor stating that he may resume full duties as of June 18, 2018. The letter stated:
Please find enclosed herewith Medical Note of Fitness to resume work from my family physician dated June 16, 2018. I will respond to the Law Society, if warranted, in due course.
[68] The same day Mr. Goswami sent an email message to Mr. Morawetz. The email message stated:
Medical Note of Fitness dated June 16, 2018 (to resume full duties) was successfully faxed to your office earlier this afternoon. As advised before, if you clients do not appear at Network North Reporting located … on the booked days of June 18, 2018 and June 19, 2018 at 10:00 am, I shall obtain Certificates of non-attendance and move to Court to strike your clients Application and ask costs personally against you or your clients, or both. I will also be seeking costs for no show on April 30, 2018. […]
[69] On June 18, 2018, pursuant to a summons served by the Applicants in the Governance Application, Mr. Partha Banerjee was examined as a witness at a special examiner’s office. Before the examination, Mr. Partha Banerjee, who it should be recalled is a self-represented Respondent in the Governance Application, was interviewed by counsel for the Applicants in the Governance Application.
[70] Mr. Goswami also cross-examined Mr. Partha Banerjee. During the cross-examination, they engaged in a heated and acrimonious argument, one with the other. They called each other liars. Mr. Goswami called Mr. Banerjee a traitor and a criminal and accused him of uttering a death threat against Mr. Goswami.[^2]
[71] During his cross-examination, Mr. Partha Banerjee testified that Mr. Ananda Chowdhury had retained Mr. Goswami for the de facto Congregation and that Mr. Goswami had advised them to separate the Congregation and the Cultural Association into separate legal entities, including creating a separate membership list for the Congregation. Mr. Banerjee testified that it was Mr. Goswami that prepared a by-law for the de facto Congregation.
[72] Pausing here to foreshadow a point to which I shall return to below, the Applicants submit that it was Mr. Partha Banerjee’s cross-examination that revealed to them that Mr. Goswami had disqualifying conflicts of interest in addition to his fitness to practice.
[73] On June 19, 2018, Mr. Morawetz sent the following email message to Mr. Goswami:
As you are aware, a chambers appointment is scheduled for tomorrow concerning the Lease Application and Governance Application. The original purpose of the said chambers appointment was to schedule a pre-trial conference. However, since the chambers appointment was booked, a number of developments have occurred. Accordingly, please be advised that at tomorrow’s chambers appointment, we will be seeking a motion date for your removal as lawyer of record for the respondents in the Governance Application. I believe that Mr. Morris will also be seeking similar relief in respect of the Lease Application. I anticipate that the grounds for your removal will include the following:
• That your mental capacity is at serious issue;
• Further to Mr. Banerjee’s examination yesterday, it would appear that your acting is not appropriate; and
• You are potentially a witness.
I do not wish to argue with you about his matter by correspondence. I am simply alerting you now so that you are not taken by surprise tomorrow.
[74] Mr. Goswami responded with two email messages as follows:
I have noted your ludicrous claims. What evidence do you have for your obnoxious claims, particularly that my mental capacity is at serious issue? I note with deep concerns that you have made serious unsubstantiated allegations against me. You will face the legal consequences for such reckless claims. I have already applied for transcripts of examination of Mr. Partha Banerjee. The record would speak for itself. You engaged yourself extremely inappropriately in the manner you approached, interviewed, and prepared Mr. Partha Banerjee, one of the Respondents in the matter. […]
I will deal with your threatened Motions as and when they are booked. […] As well, I have a number of genuine complaints against you, Mr. Morris and your principal John Lo Faso which will be addressed in my motion materials. I will not succumb to you intimidation and bullies [sic].
[75] On June 20, 2018, there was a chambers appointment before Justice MacArthur. The appointment had been requested in May by Mr. Morris to discuss the scheduling of a pre-trial conference. At the chambers appointment, Mr. Morawetz raised the matter of Mr. Goswami’s mental competence, and Justice McArthur ordered an immediate pretrial conference. She made the following endorsement:
This application and the companion application CV-17-586635 are to go for a pre-trial conference under rule 50.03(1) on an urgent basis. On today’s date, without notice to the court the applicant sought to argue that Mr. Goswami is not of sound mind. I declined to hear submissions on this issue, given the lack of notice and the seriousness of the allegation raised by the Applicants. This issue and any others can be raised with the pre-trial conference judge. The Applicants provided Mr. Goswami with their material, in support of their allegation that he is not of sound mind in court today. The pre-trial conference should be set on an urgent basis. Any costs to be considered by the pre-trial judge.
[76] The urgent pretrial conference was heard on July 3, 2018 by Justice Matheson. She granted leave for the Applicants to bring the motions to disqualify that are now before the court. She set a timetable for the motions.
6. The Action Against Mr. Chakraborty
[77] The Lease Application and the Governance Application were now stalled until the motions to disqualify Mr. Goswami was determined. Meanwhile, there were several developments that the Applicants now rely on in support of their motion to disqualify.
[78] On July 6, 2018, Mr. Goswami commenced an action in the Superior Court. He sued Diptendu Chakraborty for damages for assault. In his Statement of Claim, Mr. Goswami refers to the factual background of the internecine warfare between the Cultural Association, the April-Congregation, and the de facto Congregation. He alleged that as a result of the notoriety of the events associated with this dispute, Mr. Chakraborty posted threatening, hateful, and defamatory messages on social media causing Mr. Goswami to suffer emotional shock and distress.
[79] Also, on July 6, 2018, the Cultural Association commenced an action in the Small Claims Court. It sued Mr. Gerber and S. Wilson & Co. Bailiffs Limited. Mr. Goswami is the lawyer of record for the defendants.
[80] Meanwhile, the Law Society of Ontario was investigating the complaint against Mr. Goswami.
[81] The parties focused their attention on preparing for the disqualification motions.
[82] On October 17, 2018, Mr. Goswami received a letter from the Law Society investigator concluding that there was insufficient evidence of incapacity and therefore the Society was closing the investigation. The investigator thanked Mr. Goswami for his co-operation during the investigation.
[83] The disqualification motions were argued on November 23, 2018.
C. Disqualification Motions: Removing a Lawyer of Record
[84] A lawyer may be disqualified from representing a party, if the lawyer has a conflict of interest. There are many different types of conflict of interest.[^3] Conflicts of interest may arise, among other situations: (a) when a lawyer acts for more than one client in a multiple retainer; (b) when a lawyer is retained on a matter that involves acting against a former client; (c) when a lawyer with knowledge of a client’s legal affairs changes law firms and joins a law firm acting against the former client; (d) when a lawyer accepts a retainer against a former client of the law firm in a matter related to a previous retainer; and (e) when a lawyer is in a position of having to give significant or controversial evidence in a case in which he or she or an associate is acting as counsel.
[85] Before 1990, the approach used by courts in Canada and in England to determine whether a lawyer had a disqualifying conflict of interest in the context of litigation was set out in Rukusen v. Ellis, Munday & Clarke,[^4] an English Court of Appeal decision. In that case, the Court held that a lawyer could act against a former client, unless it was probable that the lawyer would misuse the client’s confidential information. In 1990, in MacDonald Estate v. Martin,[^5] the Supreme Court of Canada adopted a stricter approach, and in 2002, the Court’s approach to disqualifying conflicts of interest became stricter still with its decision in R. v. Neil.[^6]
[86] In MacDonald Estate v. Martin, the Court stated that in determining whether to exercise its inherent jurisdiction to disqualify a lawyer for a conflict of interest, the court will seek to balance three competing public policy values: (1) the right of a litigant to its choice of counsel; (2) the desirability of permitting mobility in the legal profession; and, most importantly, (3) maintaining high standards in the legal profession and maintaining the integrity of the administration of justice.[^7]
[87] The MacDonald Estate case concerned a lawyer’s possible use or misuse of confidential information, and R. v. Neil concerned a lawyer’s duty of loyalty apart from his or her duties with respect to a client’s confidential information. In R. v. Neil, Justice Binnie asserted that loyalty, which is an aspect of a lawyer’s fiduciary obligations, includes putting the client’s business ahead of the lawyer’s business and that loyalty involved all of confidentiality, the avoidance of conflicts of interest, commitment to the client’s cause, and candour with the client on matters relevant to the retainer.
[88] Justice Binnie stated that the bright line for fiduciary duty is provided by the general rule that a lawyer may not represent a client whose interests are directly adverse to the immediate interests of another client - even if the two mandates are unrelated.
[89] Justice Binnie defined a conflict as a “substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.”[^8]
[90] The exception to the bright line rule is where: (a) both clients consent after receiving full disclosure (and preferably, independent legal advice); and (b) the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other.
[91] The Supreme Court of Canada confirmed and explained the bright-line rule for conflicting interests in Canadian National Railway Co. v. McKercher LLP.[^9] The Court explained that the duty of loyalty includes: (1) a duty to avoid conflicting interests; (2) a duty of commitment to the client’s cause; and (3) a duty of candour.[^10]
[92] Arising from the fact that lawyers are officers of the court, courts have an inherent and supervisory jurisdiction to remove from the record lawyers who have a conflict of interest.[^11] In Canadian National Railway Co. v. McKercher LLP, the Supreme Court, however, indicated that disqualification was not appropriate for every case, but may be required: (1) to prevent the misuse of confidential information; (2) to prevent the risk of impaired representation because of the lawyer’s conflicting loyalties; and (3) to maintain the integrity and repute of the administration of justice that recognizes the importance of trust and loyalty in the lawyer-client relationship.[^12]
[93] In considering whether disqualification is appropriate, relevant factors are: (1) whether the client or party complaining of the conflict delayed in making its complaint; (2) whether the client would be significantly prejudiced by having to retain new counsel; and (3) whether the law firm with the conflict had accepted the retainer in good faith believing that it had not offended the bright-line rule.[^13] If the integrity of the justice system can be protected with a remedy short of removal, that lesser remedy should be employed.[^14]
[94] A litigant will not be deprived of counsel of its choice without good cause, and thus the court will not disqualify a lawyer unless a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice.[^15]
[95] The determination of whether a lawyer should be disqualified is very fact specific and based on an examination of all of the factors in the case including the motivation for the motion; the task of the court is to uphold and preserve the integrity of the justice system while ensuring that litigants are not deprived of their counsel of choice without good cause.[^16] Although the right to one’s choice of counsel is one of the values identified in MacDonald Estate as bearing on the issue of whether there is disqualifying conflict, primacy is given to ensuring the integrity of both the legal profession and the administration of justice.[^17]
[96] As already noted above, there are a variety of different types of conflicts of interest; i.e. circumstances of divided loyalty. A lawyer may disqualified, if he or she has a direct or indirect pecuniary or non-pecuniary personal interest that conflicts with his or her duty to the client or that conflicts with the lawyer’s duty to the administration of justice, which duty entails professionalism and being objective and detached from his client’s interest in the litigation.[^18] For example, it would be a conflict for a lawyer to be counsel for a family member because the lawyer would be unable to conduct the litigation with the necessary objectivity and emotional detachment.[^19]
[97] Another variety of conflict of interest is the conflict of acting as both counsel and as a witness in the client’s litigation. An advocate cannot be a substantive witness in his or her client’s litigation because as an advocate, he or she has a duty to the administration of justice to be objective and detached from the client’s litigation which duty could conflict with the advocate’s duty to present the client’s case in as favourable a light as possible.[^20]
[98] If it is clear from the outset of a proceeding or if it becomes clear during the proceeding that the advocate will be a material witness, he or she should be disqualified and removed as lawyer of record.[^21] The disqualification arises even if counsel does not intend to testify because his or her involvement in the matter based on participation and actual knowledge of the events rather than based on just taking instructions from his client creates a conflict between his or her duty to the court and his or her duty to the client.[^22]
[99] If there is only a potential that the advocate will have substantive evidence and be a witness for his or her client, then on a motion to have the lawyer disqualified, the court considers a number of factors in determining whether to disqualify the lawyer including: (a) how likely the lawyer will be a witness; (b) the materiality and significance of the lawyer’s evidence; (c) the likelihood of a real conflict or that the evidence will be tainted; (d) the stage of the proceedings; (e) the timeliness of the motion; (f) the impact of removal of counsel on his or her client’s right to be represented by counsel of choice; and (g) the good faith of the party making the application; (h) the mode of trial, whether judge alone or judge and jury; (i) who will call the counsel as witness; and (j) the current and past relationship between counsel and the parties involved in the litigation.[^23]
[100] While it is not necessary for the moving party to show that counsel will certainly be a material witness, conversely it is not sufficient for disqualification that the moving party can just show that counsel is a potential witness or that counsel might provide some material evidence.[^24] Where neither party has indicated a clear intention to call the lawyer as a witness, the disqualification motion is premature, although the issue of disqualification can be revisited later if the likelihood of testifying changes.[^25]
D. The Applicants’ Submissions
[101] The Applicants in both applications bluntly submit that Mr. Goswami’s fitness to practice is in issue and his disqualification is required to ensure that the integrity of the administration of justice is maintained.
[102] The Applicants submit that Mr. Goswami put his fitness to practice in issue, and it follows that, if true, he should be disqualified and, if not true, then he contrived unfitness in order to gain a tactical advantage or to disrupt the proceedings.
[103] The Applicants disparage Mr. Goswami for “hiding behind his client” rather than proffering his own affidavit and for never producing his medical records, and they submit he should be disqualified and discharged as lawyer of record for five multifarious reasons; namely:
a. Mr. Goswami is unfit for practice.
b. Relying on Scherer v. Paletta,[^26] the Applicants submit that they are now in an impossible position because they cannot rely on Mr. Goswami’s agreement as binding the Respondents, who could claim that the Applicants were aware that Mr. Goswami was incapacitated or acted without instructions.
c. Given that the Respondents relied on Mr. Goswami’s advice and given that they followed his directions in respect to the disputed issues in both applications, Mr. Goswami inevitably will be a witness in those applications, and should be disqualified on that account.
d. Because of personal conflicts of interest, it is inappropriate for Mr. Goswami to act for the Respondents and he should be disqualified.
e. Because of conflicts of interest with his clients, it is inappropriate for Mr. Goswami to act for the Respondents and he should be disqualified.
E. Should Mr. Goswami’s be Disqualified because of Unfitness to Practice Law?
[104] For two justifications, neither of which, in my opinion, have any merit, the Applicants submit that Mr. Goswami should be disqualified because of unfitness to practice law.
[105] Before addressing the three justifications, I begin by saying that it is regrettable that the Applicants persisted in advancing the argument that Mr. Goswami is mentally incapacitated or unfit to practice.
[106] To explain why the argument is regrettable, I shall assume - contrary to my actual finding - that Mr. Morawetz and Mr. Lo Faso might have been justified in lodging a complaint about Mr. Goswami’s fitness to practice with the Law Society since it was based on Mr. Goswami’s statement in his email message that he was “under the influence of medicine,” “unwell and not really functional” and that he could “ask for adjourning the upcoming examinations on medical grounds.”
[107] However, with that assumption, after Mr. Goswami explained that he had fallen two weeks previously, that he was taking pain medications, and that his reference to functionality in his email message related to the intense pain from the fall, then the Applicants should have withdrawn their complaint, and they should not have persisted with the argument that Mr. Goswami was unfit to practice law.
[108] With Mr. Goswami’s explanation, there was no longer, if there ever was, any basis for the Applicants concluding that Mr. Goswami’s mental capacity to practice law was in issue, and there was never was any basis that Mr. Goswami was engaged in misappropriations, frauds, or any misconduct that would justify making a complaint to the Law Society. It is not professional misconduct to make a mistake in scheduling cross-examinations in a civil proceeding or to say that not feeling well explains your mistake.
[109] Moreover, with the explanation from Mr. Goswami, with his continuing willingness to complete the examinations, and with his participation in the examinations on June 18, 2018, Mr. Morawetz and Mr. Lo Faso should have reconsidered their assessment of Mr. Goswami’s email message of June 14, 2018. Had they made this reconsideration, then they would and should have realized that Mr. Goswami’s message was a face-saving attempt to concede that he had made a mistake in setting the timetable for the examinations and that he made a mistake in acknowledging Mr. Morawetz’s timetable, which was not favourable to Mr. Goswami’s client. Had they reconsidered they matter, they would and should have realized that, regardless of what they may have told by the Law Society’s practice advisor, they were under no duty to report misconduct pursuant to Rule 7.1-3 of the Law Society’s Rules of Professional Conduct and they ought to have not persisted with the complaint.
[110] It may be that the Advocate’s Society’s and other professional organization’s efforts to restore the golden, perhaps mythological days, of professional courtesies and of treating one’s adversaries with respect may have failed and succumbed to the pressures of the commercialization of law and to the need to satisfy the urgent demands of clients, but whatever the modern standard of professional courtesies may be, it was rude and obnoxious for the Applicants to demand that a fellow lawyer produce his medical records, especially when the lawyer was, in effect, apologizing for a mistake, not asking for any indulgence, and seeking to get on with his client’s matter.
[111] And it was abhorrent to embarrass Mr. Goswami with a challenge to his mental competence in the attendances before Justices McArthur, Matheson, and myself based on nothing more than his having been caught out in making a mistake, writing a face-saving letter, and then explaining that he had fallen and was taking pain medications.
[112] The Applicants, nevertheless, pressed on with the allegation that Mr. Goswami was unfit to practice. And they persisted with this allegation notwithstanding that a month before the disqualification motion, the Law Society had closed the investigation.
[113] The Applicants’ allegation of unfitness to practice should have been withdrawn and then the disqualification motion would have proceeded on the more conventional grounds of conflicts of interest. It should not have been for Mr. Goswami’s counsel to have brought to my attention during his responding submissions the news that the Law Society would be taking no action.
[114] To conclude why the argument was regrettable, I add that there never was anything in the events and correspondence of June 2018 that would lead a fair-minded reasonably informed member of the public to conclude that the proper administration of justice required Mr. Goswami’s disqualification and his removal as lawyer of record for his clients.
[115] Turning to the merits of the Applicants’ submissions about why Mr. Goswami should be removed as lawyer of record because of his unfitness to practice, the first justification for the unfitness argument is that it was Mr. Goswami who made an issue of his fitness to practice law. For the reasons expressed above, there is no merit to this argument. No fair-minded person would think that Mr. Goswami’s email message was evidence of mental illness.
[116] Relying on Scherer v. Paletta, the Applicants’ second justification for seeking Mr. Goswami’s disqualification is the argument that the Applicants were in an impossible position because they could not rely on Mr. Goswami’s agreements as binding on the Respondents who could claim that the Applicants were aware that Mr. Goswami was incapacitated or acted without instructions.
[117] This purported justification is wrong for two reasons. First, the Applicants do not need to rely on Mr. Goswami to bind the Respondents, and, thus, the Applicants were never in an impossible position. The Respondents, and for that matter, the Applicants too, are bound by the Rules of Civil Procedure and by the court’s administration of justice. No party needs the agreement of his or her opponent to prosecute or defend a civil case.
[118] Using the scheduling for and conduct of cross-examinations as an illustration of why the Applicants were never in an impossible position, it may have been convenient and courteous to obtain Mr. Goswami’s agreement about when his clients would be produced for examinations, but his clients could and in fact were bound by the service of appointments, which are enforceable under the Rules of Civil Procedure.
[119] Second, Scherer v. Paletta, has little or no relevance the circumstances of the immediate case that concern arrangements to conduct examinations and complete the procedural steps for two applications. Scherer v. Paletta was a case in which a client reneged on a settlement agreement that had been reached by his lawyer. The parties had settled the litigation. The case is authority for the proposition that the authority of a solicitor to compromise; i.e., to enter into a binding settlement contract, may be implied from a retainer to conduct litigation, unless a limitation of authority is communicated to the opposite party.
[120] Scherer v. Paletta does not apply to the circumstances of the immediate case. There is no contracting with respect to scheduling matters or prosecuting or defending a proceeding in accordance with the Rules of Civil Procedure. As already mentioned, the parties will be bound by the rules of evidence, the Rules of Civil Procedure, and by the court administering the common law and equity. The Applicants were not in an impossible position because of Mr. Goswami’s email messages in June 2018.
[121] I, therefore, conclude that Mr. Goswami is not disqualified on the grounds that he is unfit to practice.
F. Should Mr. Goswami be Disqualified because He is a Potential Witness?
[122] I disagree with the Applicants’ argument that Mr. Goswami should be disqualified because he is a potential witness.
[123] In my opinion, Mr. Goswami was not a witness nor was he a participant in the events, only some of which he observed. As noted by Justice Leach in Rice v. Smith,[^27] clients regularly act on the advice of their lawyers and should the client’s conduct lead to litigation, his or her lawyer’s involvement in the matter does not necessarily disqualify the lawyer from continued involvement in the litigation.
[124] Mr. Goswami has nothing material to say about the events of April 2016 that precipitated the internecine warfare between the Cultural Association and the de facto Congregation because he was not retained as the lawyer of the de facto Congregation until June 2016 when he took instructions about the history of the matter.
[125] Mr. Goswami was hired as a lawyer for the de facto Congregation, and he gave his client legal advice. Mr. Goswami wrote letters, which speak for themselves, on the instructions of his client. It was his client that was the actor in the events, not Mr. Goswami.
[126] The only evidence that Mr. Goswami could give is about his legal advice to his client, but that advice is privileged, and it is not Mr. Goswami’s privilege to waive. If he was subpoenaed to give evidence, the subpoena would be quashed.
[127] Mr. Goswami’s involvement in the events leading up to the Lease Application and the Governance Application did not stray from his role as a lawyer for the de facto Congregation. I see no reason why Mr. Goswami would testify or need to testify for the Respondents in either application, and I see no reason why the Applicants or the Respondents would call Mr. Goswami as a witness in either application.
[128] There is no merit to the Applicants’ argument that it was not until Partha Banerjee’s cross-examination in June 2018 that they came to understand the depth of Mr. Goswami’s involvement. Mr. Goswami’s role was apparent from June 2016, and, in any event, his involvement was just as a lawyer for the de facto Congregation in its dispute with Mr. Ghosh and his allies.
[129] Thus, there is no merit in the Applicants’ argument that Mr. Goswami should be disqualified because he is a potential material witness.
G. Should Mr. Goswami be Disqualified on the Grounds of a Personal Conflict of Interest?
[130] There is also no merit to the Applicants’ argument that Mr. Goswami should be disqualified on the grounds that he has a personal conflict of interest because of the personal importance of this case to him as demonstrated by: (a) his involvement in the events; (b) his having sued Mr. Chakraborty for damages for the emotional harm; and (c) his retainer from Mr. Greber and S. Wilson & Co. Bailiffs Ltd. In my opinion, none of these matters establish that Mr. Goswami has a personal conflict of interest in continuing to act for the Respondents.
[131] Other than the normal expectation of being paid by his clients for current and future legal services, Mr. Goswami has no direct, indirect, pecuniary, or non-pecuniary interest in the Respondents’ defending the Lease Application and the Governance Application.
[132] I do not know the nature of his retainer, but presumably he would be entitled to charge for his services, win, lose, of draw. Mr. Goswami will not share in the proceeds of the litigation and his only personal interest in the applications is that he should be paid for his legal services.
[133] The same can be said about Mr. Goswami acting to represent Mr. Greber S. Wilson & Co. Bailiffs Ltd. All that Mr. Goswami can personally achieve from that action is to be paid for his legal service, which payments will come from the Respondents because the de facto Congregation gave Mr. Greber and his employer an indemnity when it retained them to change the locks on the Tagore Centre.
[134] Mr. Goswami does have a direct personal interest in his action against Mr. Chakraborty but that direct personal interest does not mean that Mr. Goswami should be disqualified from acting in the Lease Application and the Governance Application.
[135] Those applications are simply background facts that explain why Mr. Goswami and others were targeted with vile comments in social media. The outcomes of the Lease Application and the Governance Application are irrelevant to whether or not Mr. Goswami has a meritorious claim against Mr. Chakraborty.
[136] In short, Mr. Goswami has no personal conflict of interest that would justify his disqualification in the Lease Application or the Governance Application.
H. Should Mr. Goswami be Disqualified on the Grounds of a Conflict of Interest with his Client(s)?
[137] This leaves the matter of whether or not Mr. Goswami should be disqualified on the grounds of a conflict of interest with his clients. In my opinion, there is no conflict of interest.
[138] Currently, Mr. Goswami has a joint retainer from the de facto Congregation and the Respondents. Mr. Goswami does not have a lawyer-client relationship with Partha Banerjee, and during the time in which Mr. Goswami had a relationship with Mr. Banerjee, there is no objective evidence that Mr. Banerjee had a reasonable expectation that there was a client-lawyer relationship with Mr. Goswami. The current situation is not a situation where Mr. Goswami has a conflict in acting for the corporation and for the majority faction of directors or owners of the corporation. Rather, Mr. Goswami has a joint retainer for the de facto Congregation and for the personal respondents of which there is a common interest to resist the attacks being made by the Applicants to whom Mr. Goswami never had any lawyer-client relationship.
[139] Mr. Goswami made it clear when he wrote Mr. Ghosh in June 2016 that he was acting for the de facto Corporation. Before the Lease Application was brought, Mr. Goswami did not have a joint retainer and was acting for the de facto Congregation. Subsequently, once the personal Respondents were sued, Mr. Goswami had a joint retainer for the de facto Congregation and for the personal Respondents who retained him, whom did not include Mr. Banerjee.
[140] Mr. Banerjee may have now allied himself with the April-Congregation, but Mr. Banerjee was not and is not a client of Mr. Goswami.
[141] There is no prohibition in having a joint retainer nor a conflict of interest providing that the Law Society’s Rules of Professional Conduct that govern joint retainers are complied with. At this juncture of the proceeding, there is no conflict of interest amongst the clients that actually comprise the joint retainer. All the respondents have the common interest of successfully resisting both applications.
[142] In acting for the de facto Congregation, Mr. Goswami has no conflict with the Cultural Association or with the April-Congregation because they never were his clients.
[143] It may turn out that the de facto Congregation is an unlawfully constituted or governed legal entity, but that outcome has nothing to do with whether Mr. Goswami can have a joint retainer with the de facto Congregation and the personal Respondents.
[144] In short, Mr. Goswami does not have a conflict of interest and the principles of the MacDonald Estate v. Martin and the R. v. Neil line of cases do not apply.
I. Conclusion
[145] The two motions to disqualify Mr. Goswami are dismissed.
[146] The circumstances of these motions call for a punitive costs award, and I award the Respondents’ substantial indemnity costs - if requested.
[147] I recommend, however, that the Applicants’ lawyers apologize to Mr. Goswami, that Mr. Goswami accept the apology, and that the Respondents request costs on a partial indemnity basis. The parties should then get on with this matter in the normal course.
[148] In making this recommendation, I believe that all the lawyers were acting in what they thought was in the best interests of their own clients. While I conclude that the Applicants’ lawyer’s decision were very misguided, I do not believe that the Applicants’ lawyers’ motives in pursuing these motions were malicious or were taken to achieve a tactical or strategic victory. The Applicants’ lawyers overreacted to a scheduling matter that could have been and should have been resolved without the hysteria and emotional stress that followed.
[149] In making a punitive costs award - if requested, I am not to be taken as making any conclusion about the professionalism of any of the lawyers. I do not wish to replicate what happened in the immediate case of making a procedural mountain out of a procedural molehill and of damaging reputations. In making a punitive costs award, I am responding only to the circumstances of the immediate case where the disqualification motions were dismissed but serious and ultimately unfounded allegations were made about Mr. Goswami.
[150] If the parties cannot agree about the quantum of those costs, they may make submissions in writing, beginning with the Respondents’ submissions within twenty days of the release of these Reasons for Decision followed by the Applicants’ submissions within a further twenty days.
Perell, J.
Released: December 20, 2018
[^1]: R.S.O. 1990 c. C.38.
[^2]: While nothing ultimately turns on it, I observe that Mr. Partha Banerjee was an unrepresented person and while the lawyers for the parties in the immediate case are entitled to deal with unrepresented persons on behalf of their clients, under rule 7.2-9 of the Law Society of Upper Canada’s Rules of Professional Conduct, the lawyers were obliged to take care that Mr. Banerjee was not proceeding under the impression that his interests would be protected by the lawyers and to take care that Mr. Banerjee understood that the lawyers were acting exclusively and for their clients and that accordingly their comments may be partisan. It is not clear that Mr. Banerjee was dealt with appropriately be as already noted nothing turns on this matter and I make no finding.
[^3]: P.M. Perell and J.W. Morden, The Law of Civil Procedure in Ontario (3rd ed.) (Toronto: NexisLexis Inc., 2017, pp. 65-76; P.M. Perell; Conflicts of Interest in the Legal Profession (Butterworths: Markam, 1995).
[^4]: [1912] 1 Ch. 831 (C.A.).
[^5]: 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235.
[^6]: 2002 SCC 70, [2002] 3 S.C.R. 631. See also 3464920 Canada Ltd. v. Strother, 2007 SCC 24.
[^7]: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at p. 1245.
[^8]: R. v. Neil, 2002 SCC 70 at para. 31.
[^9]: 2013 SCC 39.
[^10]: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 at para. 19.
[^11]: R. v. Cunningham, 2010 SCC 10 at para. 18; MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at para. 1245.
[^12]: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 at para. 61.
[^13]: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 at para. 65.
[^14]: Konjevic v. Uber Technologies Inc., 2016 ONSC 5832 at para. 22.
[^15]: Re Kaiser, 2011 ONCA 713; Karas v. Her Majesty the Queen, 2011 ONSC 5181 (Master); Ontario Realty Corporation v. P. Gabriele & Sons Ltd., 2006 CanLII 37844 (ON LRB), [2006] O.J. No. 4497 at para. 21 (S.C.J.); Zawadzki v. Matthews Group Ltd., [1998] O.J. No. 43 (Gen. Div.).
[^16]: Karas v. Her Majesty the Queen, 2011 ONSC 5181 (Master).
[^17]: Ontario v. Chartis Insurance Co. of Canada, 2017 ONCA 59.
[^18]: Karas v. Her Majesty the Queen, 2011 ONSC 5181 (Master); Roberts v. Pega Capital Corp., 2000 CanLII 22334 (ON SC), [2000] O.J. No. 562 (S.C.J.).
[^19]: Zaldin v. Zaldin, 2014 ONSC 6504; Chouinard v. Chouinard, 2007 CanLII 36076 (ON SC), [2007] O.J. No. 3279 at paras. 21-27 (S.C.J.).
[^20]: Urquhart v. Allen Estate, [1999] O.J. No. 4816 at paras. 27-28 (S.C.J.).
[^21]: Andersson v. Aquino, 2018 ONSC 852; Teixeira v. Hamburg Olson Law Professional Corp., 2017 ONSC 7532 (Master); Rice v. Smith, 2013 ONSC 1200; Mazinani v. Bindoo, 2013 ONSC 4744 (Master); Karas v. Her Majesty the Queen, 2011 ONSC 5181 (Master); George S. Szeto Investments Ltd. v. Ott, 2006 CanLII 9307 (ON SC), [2006] O.J. No. 1174 (Master).
[^22]: Young-Tangjerd v. Official Board of Calvary United Church, 2006 ONSC 2161.
[^23]: Andersson v. Aquino, 2018 ONSC 852; Rice v. Smith, 2013 ONSC 1200; Chernukhina v. Gurevich, 2018 ONSC 330 (Master); Mazinani v. Bindoo, 2013 ONSC 4744 (Master); Ontario Realty Corporation v. P. Gabriele & Sons Ltd., 2006 CanLII 37844 (ON LRB), [2006] O.J. No. 4497 (S.C.J.); Heck v. Royal Bank of Canada, sub nom. Essa (Township) v. Guergis (1993), 1993 CanLII 8756 (ON SCDC), 15 O.R. (3d) 573 (Div. Ct.).
[^24]: Chernukhina v. Gurevich, 2018 ONSC 330 (Master); Ontario Realty Corporation v. P. Gabriele & Sons Ltd., 2006 CanLII 37844 (ON LRB), [2006] O.J. No. 4497 (S.C.J.); Graham v. Ontario, [2006] O.J. No. 763 (S.C.J.).
[^25]: Chernukhina v. Gurevich, 2018 ONSC 330 at para. 34 (Master); Forsyth v. Blue Rock Wealth Management Inc., 2015 ONSC 6666 at para. 34 (Master).
[^26]: 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524 (C.A.).
[^27]: 2013 ONSC 1200 at para. 34.```