Court File and Parties
COURT FILE NO.: C-1211-16 DATE: 2019-01-22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: EHSAN TORPEIKAI MOHAMMAD, BASIRA MOHAMMAD WAKIL and NASIRA MOHAMMAD WAKIL, Plaintiffs
AND:
MOHAMMAD WAKIL MOHAMMAD RASUL and GORE MUTUAL INSURANCE COMPANY and THE CORPORATION OF THE TOWNSHIP OF WOOLWICH, Respondents
AND:
GORE MUTUAL INSURANCE COMPANY Added by Order pursuant to Section 258(14) of the Insurance Act, R.S.O. 1990, c. I.8, as amended
BEFORE: The Honourable Mr. Justice C.S. Glithero
COUNSEL: David Elmaleh, Counsel for the Moving Party David Williams, Counsel for the Responding Plaintiffs
HEARD: January 21, 2019
Ruling on Motion
1The statutory third party, Gore Mutual Insurance Company (“Gore Mutual”), seeks an order removing plaintiffs’ counsel as lawyers of record on the basis of an alleged conflict of interest.
Background of the Action
2This action is for damages for personal injury and Family Law Act claims resulting from a single vehicle accident. Ehsan Torpeikai Mohammad (“Torpeikai”) was a passenger in the vehicle driven by the defendant, Mohammad Wakil Mohammad Rasul (“Rasul”) which left the roadway and went into a ditch.
3Torpeikai claims to have been injured in the accident and seeks damages for the negligence of her husband in operating the vehicle.
4The other two plaintiffs are daughters of Torpeikai and Rasul and advance Family Law Act claims.
5Rasul was insured with a Gore Mutual automobile insurance policy.
6Rasul refused to cooperate with Gore Mutual, including a refusal to provide a statement, and accordingly Gore Mutual claimed a breach of statutory condition and denied insurance coverage. As it is permitted to do under s.258(14) of the Insurance Act, Gore Mutual obtained an order adding it as a statutory third party to the action which, according to subsection (15), entitled Gore Mutual to defend the action as to liability, quantum and to participate in examinations for discovery and other aspects of the action.
7Thereafter, the plaintiffs obtained an order adding the Township of Woolwich (“Woolwich”) as a defendant for allegedly failing to maintain the roadway in a fit condition, and obtained an order adding Gore Mutual as a party defendant on the basis of claimed coverage for damages resulting from the negligence of the driver of an uninsured, underinsured or unidentified motor vehicle.
8Examinations for discovery began on March 5, 2018. As of that time, neither Rasul, Woolwich nor Gore Mutual had filed a defence. Nevertheless, counsel for Woolwich, and for Gore Mutual as statutory third party, and for Gore Mutual as party defendant were all present.
The Alleged Conflict of Interest
9The moving party alleges seven steps within the action which, viewed cumulatively, demonstrate a conflict of interest such as to warrant removal of plaintiffs’ counsel from the action. The seven steps are summarized as:
(i) that plaintiffs’ counsel gave legal advice to an unrepresented litigant who was opposed in interest;
(ii) plaintiffs’ counsel acted for the unrepresented litigant opposed in interest by objecting to questions on his behalf;
(iii) plaintiffs’ counsel met with the defendant Rasul and other family members behind closed doors during a recess in his examination for discovery;
(iv) plaintiffs’ counsel failed to send the plaintiffs for independent legal advice in response to the motion alleging a conflict of interest;
(v) in response to this motion, counsel for the plaintiffs drafted their clients’affidavits, and did so in a manner designed to support the position of counsel rather than accurately reflecting the position of the affiants;
(vi) on cross-examination of one of the affidavits filed in response to the motion, plaintiffs’ counsel sought to give evidence in support of her own position in re-examination of her affiant; and
(vii) plaintiffs’ counsel refused to produce copies of written waivers of conflict of interest allegedly signed by the plaintiffs
The Giving of Advice
10Mr. Rasul was examined for discovery on March 6, 2018 utilizing a Dari/English interpreter. Counsel for the plaintiffs asked Mr. Rasul 147 questions and then indicated “okay, I think those are my questions but I’m sure some of the other lawyers will have …”. Counsel for Woolwich then introduced herself and indicated she was going to ask Mr. Rasul a few questions. Plaintiffs’ counsel interrupted and said “Before, I’m sorry, before she goes ahead I know you’re unrepresented but I just wanted to let you know that she today doesn’t have the right to ask you questions so you may refuse any questions she asks you”. The lawyers then debate whether Township counsel has the right to ask questions, without resolving the issue, but Township counsel proceeds to ask the questions and Mr. Rasul answers.
11The moving party alleges that this exchange amounted to counsel for the plaintiffs providing legal advice to the unrepresented Mr. Rasul, clearly a party opposed in interest to the plaintiffs. I’m not sure that’s a justified allegation. Without researching the correct answer to the debate, as it isn’t necessary to my ruling, I note that Rule 31.03(1) provides that a party to an action may examine for discovery any other party adverse in interest. This seems to permit Township counsel to examine here. I also note that Rule 31.04(1) provides that a party seeking to examine a plaintiff for discovery may serve a notice of examination only after delivering a statement of defence. That speaks of the initiation of the discovery process. It would seem logical to me that where the defendant is to be discovered by one party opposite in interest, it is practical that all parties participate whether they have filed pleadings or not.
12Regardless, I am of the view that counsel have an obligation to provide procedural advice to unrepresented parties in such a situation as this. For instance, if an unrepresented litigant started to simply guess by way of answers to questions, or agreed to undertake to obtain information that was not his or her responsibility to obtain, I would expect counsel to step up and advise the examinee of his rights. In my opinion the interjection by plaintiffs’ counsel in the instance quoted above did not constitute the provision of legal advice to a litigant opposed in interest in any objectionable sense, at least when viewed on its own.
The Alleged Objection by Counsel for the Plaintiff to Questions Posed to the Unrepresented Litigant AND the Closed Door Meeting
13In my opinion these two items are best discussed together.
14During the examination by Township counsel of Mr. Rasul, the parties took a break. Shortly after the break Township counsel asked Mr. Rasul if he was in another room with his wife’s lawyer during the break and he answered that he was with his daughter and his grandchild. When asked if his wife’s lawyer was in the room as well, he agreed that she was. Township counsel then asked “What was discussed”. Plaintiffs’ counsel indicated on the record that she was in the other room meeting with her clients and did not want Mr. Rasul to disclose any information because it might be a matter of solicitor-client privilege. Township counsel observed that it wasn’t privileged if Mr. Rasul had heard it. Township counsel asked her question again and plaintiffs’ counsel interjected that Mr. Rasul would not have been able to understand what she would say in English.
15Then a debate ensued between counsel with everyone cutting each other off, but it is clear that plaintiffs’ counsel took the position that the question asked would infringe upon the solicitor-client privilege belonging to her clients, and that she denied being lawyer for Mr. Rasul and that she asserted that she was the lawyer for the two daughters that were present in the other room. Plaintiffs’ counsel indicated that as Mr. Rasul was unrepresented, without any lawyer looking for his best interests, that she did not want him to disclose anything that was privileged “on my end”. She repeats that her concern is that she did not want him to disclose any conversation that she had with his daughters because it would be protected by solicitor-client privilege. When the questions were clarified to indicate that what was sought was any conversation between Mr. Rasul and plaintiffs’ counsel, she answered that she would not be able to speak with him because she doesn’t speak his language and accordingly the only conversations she had were with her clients. When this exchange was all translated for the benefit of Mr. Rasul, he then indicated on the record that he only spoke to his daughter about the grandchild. Mr. Rasul then went on to answer questions.
16Counsel for the third party, Gore Mutual (not Mr. Elmaleh), then indicated he did not want to proceed with the examination for discovery of the plaintiff indicating that he had seen the plaintiff’s lawyer behind the closed door, and indicated that plaintiff’s lawyer had refused to answer the question put about what was said during the meeting, and indicated Mr. Rasul had as well, and indicated his belief that there was “some sort of lawyer-client relationship between the plaintiffs’ lawyer and the unrepresented defendant”, and that it amounted to a conflict of interest such that the plaintiffs’ lawyer cannot continue to act. Plaintiffs’ counsel then took her turn speaking to the record indicating that there is no conflict of interest and that she and her firm do not represent and never have represented the defendant, Mr. Rasul.
17On this motion, the third party’s counsel, not Mr. Elmaleh, filed an affidavit in which he indicated that he observed Mr. Rasul go into the separate room, and observed that neither of the daughters were present in the waiting room, and that plaintiffs’ counsel was not in the examination room so he came to suspect that the lawyer, the two daughters and Mr. Rasul may be together in the other room. After observing the closed door of this other room for approximately 5 minutes, he then knocked on the door and opened it and saw plaintiffs’ counsel, Mr. Rasul and the two daughters all standing around a table in the room, but indicates he did not overhear or try to overhear any of their conversations before entering the room.
18Plaintiff’s counsel filed an affidavit on this motion indicating that she spoke to the two daughters, the family law claimants, along with the son of one of them in a closed room, for a brief time and then telephoned her principal about this case and that as she was finalizing that telephone call, she turned around to see Mr. Rasul in the room visiting with his grandson and daughters in their native language. She swears that she had not heard him come in the room and had not become aware of his presence during the phone call. She swears that she did not speak to Mr. Rasul during that break. She denies any solicitor-client relationship between herself and Mr. Rasul and denies any conflict of interest.
19The daughter, Basira, filed an affidavit on this motion indicating that she was in the room during one of the breaks with her nephew and her sister and Danica, and then plaintiffs’ lawyer came into the room and they had a short discussion about the case and then the lawyer made a phone call. She continues that while the lawyer was on the phone, her father entered the room bringing fruit for them and to visit with his grandson. She indicates that the lawyer had her back towards her father and she didn’t believe that she saw him. She and her sister did not talk about the case while their father was there.
20The other sister, Nasira, similarly filed an affidavit that is virtually the same as that of her sister.
21So the situation is that plaintiffs’ counsel swears that she had no conversation with Mr. Rasul while they were in the meeting room, and his two daughters testified there was no such conversation between their father and the lawyer, or as between themselves, about the case in the presence of their father.
22Opposed to this is the suspicion that Mr. Rasul was spoken to about the case either by the plaintiffs’ lawyer, or the two sisters, but with no particulars at all concerning what was allegedly said.
23Counsel for the moving party points out that Rule 3.4-1 of the Rules of Professional Conduct prohibits a lawyer from acting, where there is a conflict of interest, which it defines as existing when there is a substantial risk that the lawyer’s loyalty or representation of the client would be materially and adversely affected by the lawyer’s own interest or duties to another client. The rule points out that it must be a substantial risk, one that is significant and plausible and not just a mere possibility.
24Counsel points to the case of R. v. Neil, 2002 SCC 70 where there are a number of principles enunciated with respect to a lawyer’s duty of loyalty, which of course includes the duty to avoid conflicting interests. The principles are well known. In that case, that case involved the actions of a lawyer who acted for a co-accused of the accused with respect to other matters which transpired at a time the lawyer was found to have ought to have known of the upcoming criminal charges, and where the lawyer attended on the accused in custody for the purpose of collecting information useful in the defence of the accused’s associate.
25Counsel for the moving party also relies on the Supreme Court of Canada judgment in Canadian National Railway Company v. McKercher et al, 2013 SCC 39. That was a case where the law firm was acting for CNR on several matters and while doing so accepted a retainer for a plaintiff in another action against CNR.
26Again in that case, the court reaffirmed the duty of loyalty owed by a lawyer to a client, and defined it as including a duty to avoid conflicting interests, a duty of commitment to the client’s cause and a duty of candour. The judgment identifies the misuse of confidential information from a client as giving rise to one type of prejudice. It confirmed the earlier Supreme Court of Canada case of MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 outlining a two part test to be utilized in determining the conflict of interest issue in a situation of an earlier retainer as being “(1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of that client?”. The court in CNR went on to define the “Bright Line Rule” from Neil indicating that a lawyer may not represent a client in one matter while representing the client’s adversary in another, without informed consent from both.
27Counsel rely as well on Dang v. Conteh, 2015 ONSC 8022, where it was held that the driver of a vehicle had a potential conflict of interest with respect to the three passengers in the vehicle because of the potential of a claim by the passengers as against the driver, and relies on Caughey v. Gareaux, [2003] O.J. No. 3817 to the same effect. Those cases are of no assistance here in that there was no issue in those cases that counsel acted for all the parties.
28As pointed out in Chapters v. Davies, Ward & Beck (2001), 2001 CanLII 24189 (ON CA), 52 O.R. (3d) 566 at paragraph 30, the possibility of misuse of confidential information must be realistic and not merely theoretical.
29The onus of providing a conflict of interest is on the moving party. In my opinion it has not been shown that plaintiffs’ counsel also acted for the driver, Mr. Rasul. Counsel denies it. Mr. Rasul does not claim it. Mr. Rasul could have been examined on the motion but was not. In my estimation the fact that plaintiffs’ counsel pointed out to Mr. Rasul that in her opinion he did not have to answer questions cannot be said to amount to a solicitor-client relationship or justify a finding that she was acting as his counsel. She stated her opinion that he didn’t have to answer questions if he didn’t want to. He chose to and did, thereby ignoring her advice.
30I cannot assume that the lawyer sought or obtained any information from Mr. Rasul in the closed door meeting room. She denies it, his daughters both deny it and Mr. Rasul’s answer on discovery denies it. The reason given by he and his two daughters for their being together in the room is not difficult to understand, as they are all family members. He ought not to have been in the room, in my estimation, but on the record before me, it appears that his presence was not known to counsel and she did not speak to him after realizing he was there.
31As there is a denial of any information passing between Mr. Rasul and counsel, a mere unfounded suspicion that something may have been said can hardly amount to a “substantial risk” that it will be used to the detriment of the client.
The Issues of Independent Legal Advice and Conflict of Interest
32The daughter Basira filed an affidavit on this motion outlining the circumstances in the meeting room and swearing that she had been advised of her right to seek independent legal advice and with respect to potential or actual conflicts of interest. When cross-examined on her affidavit she testified that she understood the right to independent legal advice as being the right to seek any other legal advice regarding the conflict of interest, or apparent conflict of interest, but agrees that her counsel did not send her to any other lawyer and indicates that they chose to stay with plaintiffs’ counsel. She also swore that she has provided written authority to plaintiff’s counsel to continue to act for her notwithstanding any potential conflict of interest, and although a copy of that written authority was requested, it still has not been provided.
33The daughter Nasira was cross-examined on her affidavit and gave conflicting answers as to her understanding of independent legal advice, at one point indicating that she thought it was advice from herself, and at another point indicating that it was legal advice she had received from her lawyers. She agreed she did not speak to any other lawyer.
34The plaintiff Torpeikai was also cross-examined on her affidavit filed in response to the motion. She admitted she didn’t understand what the term “conflict of interest” meant and admitted she didn’t understand that she was able to seek advice from another lawyer about the issues raised by this motion, with those admissions coming on the heels of her affidavit indicating that she understood such rights.
35All three of these women agreed that it was plaintiffs’ counsel who prepared their affidavits.
36In her cross-examination on her affidavit, plaintiffs’ counsel insisted that she did advise all three plaintiffs that they could seek independent legal advice and explained that she believed that while they might not understand the exact terminology, they understood the concept as it was explained to them.
37Objection is also taken to efforts by plaintiffs’ counsel in the form of redirect of Nasira to explain what was said about independent legal advice and after objections based on the concept that the lawyer was giving evidence improperly, the witness indicated she understood she had the right to see another lawyer.
Analysis
38In my opinion the moving party has not demonstrated a conflict of interest, either when the specific complaints are viewed individually, or collectively. As I have indicated, I am of the view that pointing out to the unrepresented defendant counsel’s view he didn’t have to answer questions was not providing legal advice in a fashion that would create a solicitor and client relationship with a person opposite in interest. I am also of the view that plaintiffs’ counsel’s objection to questions to the unrepresented defendant as to what was said during the closed door meeting were legitimate attempts to protect her clients’ solicitor-client privilege, and was not a situation of objecting to a question on behalf of the unrepresented litigant such as to lead to a fair conclusion that counsel was acting as counsel for him. As to the closed door meeting, that kind of situation is a risky business. I accept the un-contradicted evidence that counsel did not know the unrepresented plaintiff had entered the room while she was on the phone. I further accept her evidence and that of the two sisters, un-contradicted by anything other than suspicion, that nothing was said as between counsel and the unrepresented litigant about the case. That being so, there has been no demonstrated risk for misuse of confidential information as there is no evidence that any confidential information was imparted.
39In my opinion those matters do not give rise to a conflict of interest. If there is no conflict of interest, then the further complaints about the absence of independent legal advice and the apparent lack of clear understanding about the meaning of that term or of the meaning conflict of interest are not enough to create a conflict of interest where none arises on the facts concerning the interactions between the parties. It would be better if counsel for the plaintiffs had not drafted the affidavits filed on this motion, it would be better if more efforts had been made to have the plaintiffs get independent legal advice, and would have been better to furnish counsel for the moving party with the written authorizations to continue to represent the plaintiffs.
40These additional matters relate to what could be done to remedy a potential conflict of interest, or to overcome it in a way such as to enable plaintiffs’ counsel to continue to act in spite of the conflict of interest. But I find there was no conflict of interest, at least none that has been proven.
41It is trite law to indicate that counsel of choice is an important legal concept and not one to be interfered with lightly. In the absence of a proven conflict of interest, there are no grounds to remove plaintiffs’ counsel from the record. As indicated in Best v. Cox, 2013 ONCA 695 at paragraph 8, adopting with approval comments by Cronk J.A. in re Kaiser, 2011 ONCA 713 “Canadian courts exercise the highest level of restraint before interfering with a party’s choice of counsel. Where such discretionary, equitable relief is invoked, there must be a possible or real mischief should a removal order be refused. The test is whether a fair minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice.”
42I am of the opinion that this mythical, fair minded and reasonably informed member of the public might very well shake his or her head in disapproval of what transpired in the impugned examination for discovery, but would not conclude that the removal of counsel was necessary in the circumstances of this case. This motion is dismissed.
43I point out that Mr. Williams, who appeared for the respondents in this motion, is not a member of the firm acting for the plaintiffs.
Costs
44At the conclusion of submissions on this motion, counsel indicated that they did not have cost outlines, as both agreed it would be preferable to receive my decision, but they also indicated that they expected to be able to agree on the issue of costs. Both counsel were well prepared. I expect they will able to agree on the issue of costs. If for some reason they are not able to do so, written submissions may be made and forwarded to my chambers in Kitchener, with those of the plaintiffs’ counsel within 15 days of the release of this decision, and those of responding counsel within 10 days thereafter. The submission should not exceed five typed pages, exclusive of offers to settle and bills of costs. If such submissions are not received within the timelines set out therein, or any extensions thereof sought and granted, costs will be deemed to have been settled as between the parties.
C.S. Glithero J.
Date: January 23, 2019