S.B v. J.M., 2019 ONSC 6128

OSHAWA COURT FILE NO.: FC-19-825-001

DATE: 20191022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

S.B.

Applicant

– and –

J.M.

Respondent

Self-represented (W. Abbott – agent on the Motion)

P. Epstein, for the Respondent

• and –

EPSTEIN COLE LLP

J. Lisus/P. Michell

HEARD: September 30, 2019

MOTION DECISION

L. E. FRYER, J

I. Introduction

[1] S.B. is the moving party in the Motion to Change. He is also a family lawyer.

[2] S.B. brings this motion to remove Epstein Cole LLP as solicitors of record for his ex-wife J.M. based on two primary grounds summarized as follows:

(a) Philip Epstein Q.C., Aaron Franks and associate lawyer, Adam Prewer will be called as witnesses by S.B. to give evidence with respect to their interference in S.B.’s livelihood including his application for judicial appointment and as such the firm is in a conflict of interest.

(b) These lawyers have such animus toward S.B. that it has compromised their ability to discharge their duties to J.M. and to the court in an objective fashion and this has created a conflict of interest.

[3] S.B. stressed at the outset that J.M. will not be prejudiced by the removal of Epstein Cole LLP as this litigation is in its early stages. On the other hand, he will be prejudiced and it “is in the interest of fairness, and the appearance of fairness, to remove [J.M.’s] solicitors [as] the adjudication in this case (including the process of conferences attempting to settle matters) should be free from bias, self-interest and suspicion”.

[4] J.M. opposes the motion as she has been represented by Epstein Cole LLP since 2017 and the firm has historical familiarity with her case. According to her, this motion is part of a long-standing effort by S.B. to negotiate with her directly and to separate her from counsel. She states that she is a particularly vulnerable litigant who is up against a sophisticated spouse with family law expertise.

[5] Epstein Cole LLP’s position on the motion is that there are no grounds to disqualify the firm on the basis of a traditional conflict of interest or otherwise and the allegations of animus and/or interference in S.B.’s professional dealings have no foundation in reality.

II. Background

[6] S.B. and J.M. were married for approximately 20 years and they have three children.

[7] S.B. has practiced family law for many years in the Greater Toronto Area. He has been certified by the Law Society as a specialist in family law.

[8] J.M. works as a court connected family mediator.

[9] S.B. and J.M. settled the issues arising from their separation by way of a Separation Agreement executed on December 19, 2017. During the negotiations, S.B. was represented by Avra Rosen and J.M. was represented by Aaron Franks. Their Separation Agreement provides that there will be a review of support after May 2019. S.B. has initiated this Motion to Change seeking to reduce his support obligation on the basis that there has been a decline in his income.

[10] The relationship between S.B. and Mr. Franks became increasingly strained as the legal file progressed through the negotiation of the Separation Agreement and to subsequent litigation.

[11] The state of his relationship with Mr. Franks was not an impediment to S.B. asking his partner, Philip Epstein to act as a reference in his application for judicial appointment on October 25, 2017 to which Mr. Epstein agreed.

[12] According to S.B., J.M. deliberately retained Epstein Cole LLP after he commenced his Motion to Change despite knowing of the conflict of interest. S.B. suggested that the “conflict” included the fact that Mr. Epstein was now named as his referee in his judicial application. S.B. further asserted that J.M.’s decision to retain the firm was for strategic reasons and made despite “many previous months of [S.B.] communicating to [J.M.] and [Epstein Cole LLP] that they should not act”.

[13] The working relationship between S.B. and Mr. Franks did not improve after S.B. started to represent himself and tried repeatedly to initiate settlement discussions directly with J.M. despite describing her as a vulnerable party and contrary to her wishes.

[14] S.B. filed a Law Society complaint against Mr. Franks on February 14, 2019.[^1]

[15] J.M.’s file was transferred to Mr. Epstein around this same time.

[16] S.B. served his Notice of Motion to disqualify Epstein Cole LLP on July 18, 2019.

III. Evidence on the Motion

[17] Under the circumstances I would have preferred to keep the factual analysis brief but S.B. acknowledges that he cannot point to one single event or ground upon which Epstein Cole LLP could be disqualified. Rather he suggests that it is the pattern of events examined cumulatively that will lead to that inevitable conclusion.

(i) Pattern of Conduct in the Litigation

[18] S.B. alleges that J.M. and the Epstein Cole LLP lawyers engaged in a pattern of litigation conduct that has hurt his professional reputation and his livelihood.

[19] S.B.’s initial allegations (in italics) are as follows:

• J.M. “originally enlisted Aaron Franks (Phil Epstein’s son-in-law) and gave him instructions to use the court process as leverage in the divorce”. S.B. does not explain how he knows that those were her instructions to Mr. Franks, nor does he explain why those instructions might be inappropriate.
• From the beginning Mr. Franks was belligerent and hostile to S.B.
• J.M. declined to participate in mediation-arbitration and Mr. Franks “supported this choice” with the intention to embarrass [S.B.] and hurt his professional reputation.
• J.M. commenced her Application for Divorce at the court at 393 University Avenue in Toronto in an effort to embarrass him as she knows that he appears there regularly with clients. S.B. does not explain where else J.M. should have commenced the Application when both parties live in Toronto.
• Mr. Franks deliberately sent process servers to his office to serve him in front of his clients and staff. Mr. Franks sent faxes and couriered packages to his office in order to “continue to embarrass [S.B.], worry his staff and hurt his livelihood”. S.B.’s office is his address for service on the court documents.
• Mr. Franks “directed his Process Server to accuse the Applicant’s law clerk, in front of the Applicant’s staff and clients, of the Applicant hiding in his office and evading personal service” when S.B. was in fact in Ottawa at the time. S.B. does not explain how he knows that Mr. Franks gave these directions. S.B. does not produce affidavit evidence from one or more of his office staff or seek to introduce hearsay evidence from one or more of them in the usual fashion to support this contention.
• In November 2017, Mr. Franks accused S.B. of consulting a “brain trust” in order to deceive the Ontario Superior Court of Justice and to shield his income from J.M. The only evidence proffered by S.B. in support of this allegation was a letter from his lawyer at the time, Avra Rosen asking Mr. Franks to apologize for the alleged accusation.

[20] The evidence from S.B. and J.M. does reflect that the working relationship between S.B. and Mr. Franks was strained. A good part of the tension was due to S.B.’s insistence on communicating directly with J.M. about the legal issues despite her and her lawyers’ repeated requests for S.B. to communicate through counsel only. The e-mail exchanges reveal palpable frustration on the part of J.M. and her lawyers in the face of S.B.’s steadfast insistence on pursuing such communication.

[21] In addition to the foregoing, S.B. points to further examples that he says demonstrate that Mr. Franks was being “belligerent and hostile” to him.

[22] J.M. was to proceed with obtaining an uncontested divorce per their Separation Agreement but she refused to do so until S.B. complied with his outstanding obligations under the agreement. S.B. brought a motion to compel J.M. to obtain the divorce without realizing that she had already done so and that a copy of the divorce judgment had been sent to Avra Rosen who was still his solicitor of record. On September 20, 2018 S.B. brought a motion for costs of this motion before Stevenson J.

[23] At the motion, Mr. Franks raised a concern that S.B. had served his reply affidavit for the motion before having been served with J.M.’s responding affidavit. J.M. questioned whether S.B. had been hacking her e-mails, something she had suspected had been happening in the past. In his evidence on the motion before me, S.B. stated that Mr. Franks “insisted that [S.B.] be cross-examined on this “false charge”. However, the transcript from the appearance and Stevenson J.’s endorsement dated September 27, 2018 reflects that in fact S.B. volunteered to give oral evidence. Stevenson J. ruled at paragraph 21 of her endorsement that she accepted “that [J.M.] and her counsel had reasonable concerns as to how [S.B.] would know what was contained within [J.M.]’s responding affidavit when drafting his reply. However, [S.B.] did provide a plausible explanation…”. Stevenson J. did not award costs.

[24] S.B. stated that J.M. and Mr. Franks knew that these various accusations - brain trust, evading service, hacking e-mails – were false. He does not make this reference rhetorically as in “of course, they should have known better”, rather S.B. states, “Mr. Franks’ actions were deliberate, calculated and aimed to cause me prejudice, fear and intimidation”. He characterizes these alleged actions as a continuation of Mr. Franks’ “professional misconduct”.

[25] S.B. suggested that when Mr. Epstein later took over J.M.’s file, Mr. Epstein continued this pattern of behaviour. S.B. put much emphasis on a letter dated March 11, 2019 in which Mr. Epstein states, “…it is highly unlikely, in view of the diverse positions and what I am sure will be highly conflicting affidavits, that this matter can be dealt with by way of a motion as opposed to a trial of an issue”. S.B. stressed that this is proof positive that Epstein Cole LLP is bent on litigating as opposed to settling the case expeditiously and that this is a factor for the court to consider in this motion.

(ii) Alleged Interference with Application for Judicial Appointment

[26] The second and related focus of S.B.’s motion is the alleged interference by the Epstein Cole LLP lawyers in S.B.’s application for appointment to the Unified Family Court. S.B. suggests that not only is it unfair for Mr. Epstein to act for J.M. while functioning as his referee but he also infers that it could constitute a conflict of interest.

[27] As noted above, Mr. Epstein had agreed to act as a reference in S.B.’s application for a Federal judicial appointment and S.B. submitted his application on November 3, 2017 naming Mr. Epstein and others.

[28] S.B. stated that his appointment to the bench was, somewhat surprisingly, a subject of discussion with J.M. and Mr. Aaron Franks during the negotiation of the Separation Agreement that was taking place around the same time, and was relevant, according to S.B. “since it related to future child support that would be payable on the salary of a judge”.

[29] According to S.B., Mr. Franks also knew that S.B. had asked Mr. Epstein, who happens to be Mr. Franks father-in-law, to be a reference but he did not provide details to support this conclusion.

[30] The turning point in this whole narrative appears to be the e-mail that Aaron Franks sent to S.B. on December 8, 2018 in which Mr. Franks states, “…You have no objectivity here, that is why you need a lawyer. Please retain counsel before you single-handedly ruin your own future aspirations”. S.B. followed up on this e-mail with several demands for clarification as to what was meant by “future aspirations”.

[31] S.B. deposes that he then spoke to all of his other referees who according to him confirmed that they had been interviewed by a representative of the Judicial Appointments Committee. S.B. concludes from this that “it appears to [him] that Mr. Franks and Mr. Epstein influenced [his] application for judicial appointment”. Although not expressly stated by S.B., the inference appears to be that were it not for such interference, he would already have been appointed to the Unified Family Court.

(iii) The Law Society Complaint

[32] S.B. filed a complaint with the Law Society of Ontario against Mr. Franks for “professional misconduct” on February 11, 2019. He included a copy of the complaint in his affidavit materials in which he repeats many if not all of the foregoing allegations.

[33] S.B. alleges that it was after he filed the complaint with the Law Society, that Mr. Epstein “started acting vengefully towards [him] and interfering with his law practice”.

[34] S.B. provided the following as examples of “Mr. Epstein’s “reprisals” (S.B.’s evidence is set out italics):

(a) On January 23, 2019 Mr. Epstein notified S.B. that S.B.’s client would be terminating him in a case where Mr. Epstein acted for the husband and is friends with him.

The letter from Mr. Epstein attached to S.B.’s affidavit, which I note contains the clients’ names, simply states that Mr. Epstein’s client wants to move forward with finalizing an agreement. Mr. Epstein indicates that S.B.’s client was not sure if S.B. was still her lawyer. Mr. Epstein asks S.B. to confirm that so they might discuss resolution.

There is nothing to suggest that Mr. Epstein influenced S.B.’s client to terminate the retainer nor does S.B. state that his retainer was in fact terminated. This example pre-dates the complaint against Mr. Franks to the Law Society.

(b) On November 14, 2018 Mr. Epstein withdrew as mediator for a case of [S.B.] causing delay and embarrassment to [him] me and [his] client.

The letter from Mr. Epstein attached as an Exhibit to S.B.’s affidavit (again the names of the clients are not redacted) simply states that Mr. Epstein is withdrawing as mediator due to a conflict. Mr. Epstein’s decision to withdraw as mediator was in accordance with the guidelines of the Ontario Association of Family Mediators. This example also pre-dates the Law Society Complaint that was supposedly the trigger for the reprisals.

(c) On April 10, 2019 Mr. Epstein was approached to act as a mediator by S.B.’s opposing counsel.

Mr. Epstein responded to S.B.’s opposing counsel simply stating that he had a conflict. There was nothing in the correspondence to suggest that the conflict was related to S.B.

(d) By letter dated April 11, 2018 [Mr. Epstein] notified S.B. that neither former Justice Frank, nor any mediator from his center would serve as a mediator in a case where S.B. was acting for a party.

Mr. Epstein stated, “Believe me there is nothing personal in this…I am not prepared to disclose to third parties why we have a potential conflict, but clearly the Arbitration Act and the OAFM Guidelines would require I disclose that we are acting for your wife….”. Mr. Epstein goes on to suggest that if S.B. wanted to waive the conflict and to advise the other counsel of the situation, one of the other mediators in his chambers, such as Justice Frank, could assist.

[35] S.B. also referred the court to something that happened in the past that, with the benefit of hindsight, he believes also forms part of the pattern of behaviour to hurt his professional reputation and livelihood. S.B. had been accepted as a roster mediator with Halton Region and, according to him, had been receiving a steady flow of referrals in 2016 and 2017. On July 6, 2017 Adam Prewer, an associate lawyer with Epstein Cole LLP notified him by e-mail that S.B. could not act as court connected mediator due to a conflict of interest. S.B. did not remark upon this at the time. However, according to S.B. after that the referrals from Halton Region dried up and he “does not know why, but assumes that this has to do with the information that Mr. Prewer communicated with the manager of the roster of mediators”.

IV. Summary of Applicable Legal Principles

[36] A party’s right to choose counsel to represent her in litigation is a fundamental value of our legal system. A litigant should not be deprived of her counsel of choice without good cause: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at para. 13.

[37] The courts in the exercise of their supervisory jurisdiction over the administration of justice in the courts have inherent jurisdiction to remove law firms from pending litigation. Disqualification may be required: (1) to avoid the risk of improper use of confidential information; (2) to avoid the risk of impaired representation; and/or (3) to maintain the repute of the administration of justice: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649 at para. 61.

[38] The court must exercise the “highest level of restraint before interfering with a party’s choice of counsel”: Re Kaiser, 2011 ONCA 713, [2011] O.J. No. 6223 at para. 21.

[39] Disqualification motions are brought pursuant to the inherent jurisdiction of the court, which is an “extraordinary power” to be exercised “sparingly”: Zaldin v. Zaldin, 2014 ONSC 6504, [2014] O.J. No. 5355 at paras. 4, 5 and 10.

[40] The court must be alive to the fact that disqualification motions may be tactical and prone to abuse: Corrado Di Rosa v. Edisoft Inc., 2012 ONSC 7240, [2012] O.J. No. 6169 at para. 17.

[41] The moving party bears the burden of demonstrating that counsel should be disqualified: Zaldin at para. 11.

[42] The responding party is not required to lead evidence on the motion: Lautec Properties Inc. v. Barzel Windsor (1984) Inc., 2002 CanLII 7578 (Ont. SCJ) at paras. 18-20.

[43] The test is whether a fair-minded, reasonably informed member of the public would conclude that the removal of the law firm is necessary for the proper administration of justice. The factors to be balanced are (a) maintenance of respect for and the integrity of the high standards of the legal profession and the justice system as a whole; (b) the principle that a litigant has a right to choose her counsel, which should not be interfered with lightly; and (c) the objective of allowing reasonable mobility in the legal profession: MacDonald at para 57, Zaldin at para. 14 and Leach v. Leach, 2016 ONSC 6140, [2016] O.J. No. 5086, at para. 15.

V. Analysis

[44] In his Factum S.B. states that he is moving to disqualify Epstein Cole LLP as the solicitors for J.M. “because of a conflict of interest and because of the Rules of Professional Conduct”.

[45] In this case there is no suggestion that S.B. was ever a client of Epstein Cole LLP. There is no allegation that Epstein Cole LLP obtained relevant confidential information from S.B. Similarly, S.B. does not allege that Epstein Cole LLP has a duty of loyalty to him.

[46] S.B. framed the grounds of his motion as follows:

a. One or more Epstein Cole LLP lawyers will be necessary witnesses in his Motion to Change namely in relation to their interference with his livelihood and income including interference with his application for a judicial appointment.

b. S.B. has made a complaint to the Law Society of Ontario against J.M.’s former counsel at Epstein Cole LLP.

c. One or more Epstein Cole LLP lawyers have animus toward S.B. such that they are not able to discharge their obligations to J.M. and as officers of the court in an objective and impartial fashion.

d. There would be no prejudice to J.M. in finding alternate counsel as the Motion to Change has just commenced.

e. The removal of Epstein Cole LLP as J.M.’s lawyers is required in order to protect public confidence in the administration of justice which should be “free from bias, self-interest and suspicion”.

[47] Throughout this analysis, I have by necessity commented on the relative strength of S.B.’s claims as disclosed by the evidence that he has put forward for this specific motion. These reasons should not be viewed as a binding determination on the substantive issues in the Motion to Change.

1. Should Epstein Cole LLP be disqualified because lawyers from that firm might be called as witnesses?

[48] In Essa (Township) v. Guergis et al. (1993), 1993 CanLII 8756 (ON SCDC), 15 O.R. (3d) 573 (Div. Crt.), the court set out the factors for the court to consider in determining whether or not to exercise its discretion to disqualify counsel who may be called as a witness. Many of the aspects of the test are inherently interrelated.

a. The stage of the proceedings

[49] The court must determine whether the issue of disqualification needs to be decided now or if it can be deferred to the judge hearing the motion or trial. This factor is related to the issue of whether it is likely that the lawyer will be called as a witness in the future with respect to a substantive issue.

[50] In Essa, O’Brien J. speaking for the Divisional Court stated:

I believe courts should be reluctant to make what may be premature orders preventing solicitors from continuing to act. In view of the expense of litigation and the enormous waste of time and money and the substantial delay which can result from an order removing solicitors, courts should do so only in clear cases. I adopt the approach taken on this point in Carlson v. Loraas Disposal Services Ltd. (1988), 1988 CanLII 5377 (SK QB), 30 C.P.C. (2d) 181 at p. 188, 70 Sask. R. 161 (Q.B.).

As discussed in the Carlson decision, an application to remove counsel can be made to the trial judge when it is certain there is a problem.

[51] There is a countervailing argument which is the one that S.B. started with in his submissions: that it is easier to remove Epstein Cole LLP as J.M.’s lawyers early in the proceeding and by so doing would avoid possible future prejudice or inconvenience. In Corrado Di Rosa at para. 33, the court addressed this tension citing George S. Szeto Investments Ltd (cob Ruby King) v. Ott 2006 CanLII 9307 (ON SC), [2006] O.J. No. 1174 (S.C.J.):

13. In my view, the apparent conflict between these lines of cases is easily resolved by examining when the court can conclude that there is more than real likelihood that the solicitor will be called as witness. If there is some doubt, "merely a potential", the courts have been more generous in allowing counsel to remain on the record and deferring the matter until after discoveries or leaving the matter to the trial judge. Where the court is satisfied on the record before it that the counsel will be called as a witness, the decisions favour an early determination of the issue.

[52] S.B.’s primary position is that there is a need to call the Epstein Cole LLP lawyers to substantiate his claim: that Epstein Cole LLP has interfered with his livelihood in various ways and this has caused a reduction in his income for the payment of support. However, as will be explored in greater detail below, the evidence that he has proffered in this motion does not reasonably support his contention. At this stage of the litigation, it is far from clear that any of the Epstein Cole LLP lawyers would be in a position to provide relevant evidence based on the claims as framed by S.B.

b. The likelihood that the witness will be called

[53] S.B. has stated that he intends to call the Epstein Cole LLP lawyers as witnesses. However, his stated intention is not determinative of the issue.

[54] On a disqualification motion the court must examine the nature of the moving party’s claims to determine if they have an air of reality with respect to which the lawyer(s) might be called upon to provide material evidence: Corrado Di Rosa at para. 34.

[55] When viewed objectively the evidence proffered by S.B. does not lend the necessary air of reality to his claim that any of the Epstein Cole LLP lawyers have interfered with his livelihood or his professional reputation. This is particularly so with respect to his allegation that they interfered with his application for judicial appointment.

[56] S.B. submitted that Epstein Cole LLP was “hiding behind the confidentiality of the Judicial Appointments Committee” in failing to address his allegation of interference. When a lawyer submits an application to be considered for judicial appointment, he or she must understand and accept this mandate of confidentiality. On the website: Judicial Advisory Committees – Guidelines for Judicial Advisory Committee Members (www.fja.gc.ca) it is stated that Judicial Appointments Committee members must effect their interviews on a confidential basis and the person consulted must be asked to treat the consultation in the same way. The “[a]pplicants are not to be informed of the result of their assessments, only the date on which the assessment was completed”.

[57] Later in submissions, S.B.’s counsel on the motion stated that S.B. was not asking the court to delve into the judicial appointments process but that is exactly what S.B. is suggesting needs to occur for him to ultimately make this aspect of his case for economic interference in relation to his Motion to Change. Even if S.B. had raised a spectre of interference in his application for judicial appointment by one or more of the Epstein Cole LLP lawyers, the strictly confidential nature of the process to which he submitted and the various considerations that form part of the nomination of a judge for appointment render further inquiry moot.

[58] At this point, based on the evidence, I cannot find that S.B.’s claims have the requisite “air of reality” such that there is a real likelihood let alone a potential that one of more of the Epstein Cole LLP lawyers might be called to give relevant evidence.

c. Moving party’s good faith (or otherwise)

[59] I appreciate that S.B. finds it difficult to be self-representing against counsel with whom he has had many, likely positive, professional dealings in the past. He feels that it is “unfair” that Mr. Epstein is acting for J.M. and also functioning as referee on his judicial application.

[60] S.B.’s stated position is that the Epstein Cole LLP lawyers need to be disqualified and that a failure to do so “would be a crucial violation of [his] lawful right to present the necessary evidence on the material issues in this case such as his professional reputation, income and earning capacity and to test [J.M.]’s evidence”.

[61] In my view S.B.’s motivation cannot be taken entirely at face value.

[62] There was support for the fact that S.B. would rather that J.M. not have the benefit of Epstein Cole LLP as counsel for other more strategic reasons. S.B. has tried on a number of occasions to negotiate with J.M. directly despite her vulnerabilities. He has not honoured her consistent and repeated requests to communicate with her through counsel. S.B.’s relentless efforts to deal with J.M. directly were at the root of much of the conflict between him and her counsel. S.B. suggested he and J.M. were obliged to communicate directly in order to co-parent the children, but the e-mails reflect that he was anxious to try to reach a resolution of the financial issues with her in the absence of her counsel.

[63] I find that there is also a significant tactical component to the request to disqualify the Epstein Cole LLP firm from acting for J.M.

d. Significance of the Evidence

[64] As the court stated in Graham v. Ontario (2006), 26 C.P.C. (6th) 238 at paras. 35 (Ont. SCJ):

It is not sufficient for a moving party to suggest opposing counsel is a potential witness or allege only that he or she might provide material evidence. Rather, it must be established there is a real basis to believe counsel can likely, or probably, provide material evidence: see: R. v. Harris (1994), 1994 CanLII 2986 (ON CA), 93 C.C.C. (3d) 478, at p. 479, (O.C.A.); Urquhart v. Allen Estate, supra, at para. 22; and Forward v. Zurich Insurance Co., (2002), 2002 ABCA 123, 303 A.R. 119 (Alta. C.A.).

[65] Having regard to the claims as currently framed by S.B., I cannot find that there is a real basis to believe that any of the Epstein Cole LLP lawyers would be likely to have material evidence that would assist the court.

e. Impact of removing counsel on the party’s right to be represented by counsel of choice

[66] S.B. suggested that as this litigation was in its infancy, there would be little or no impact on J.M. His position fails to acknowledge the fact that J.M. has been represented by Epstein Cole LLP since 2017 and the firm has considerable institutional knowledge of her case. Having regard to the reasonably complex and high conflict nature of the legal dealings between the parties to date, this file familiarity would be particularly important.

[67] If J.M. was forced to retain counsel at a different firm, she would incur significant costs for that counsel to get up to speed. Furthermore, it would likely be difficult for J.M. to find other similarly experienced counsel who would be prepared to act pro bono.

[68] S.B. described J.M.’s other vulnerabilities in some detail in his own affidavits. In her affidavit J.M. deposes that she is afraid to be in the same room as S.B. due to the nature of their relationship. J.M. also points to the power imbalance between the parties due, among other things, to S.B. being an experienced family lawyer, which power imbalance is mitigated by the assistance of her current counsel.

[69] To remove Epstein Cole LLP as J.M.’s counsel of choice would be prejudicial and would result in serious consequences to her. This is a significant factor weighing against disqualification.

f. Judge or Jury

[70] Like all family law cases, this case will ultimately be heard by a judge alone. This factor weighs against disqualification.

g. Likelihood of real conflict arising or that the evidence will be tainted

[71] As I have found above, S.B.’s claims are tenuous in nature at best and the chance of any lawyer from Epstein Cole LLP being called upon to give evidence in relation to the claims, at this point, seems unlikely. For this reason, this element of the test has less significance.

h. Who will call the witness

[72] If any of the Epstein Cole LLP lawyers were called as witnesses the determination as to who would examine or cross-examine them could be made by the judge at the Trial Scheduling Conference.

i. Connection between counsel, the prospective witness and the parties involved in the litigation

[73] This relates to a concern about who might conduct the examination of the lawyer witness. It is possible that independent counsel could conduct the examination of the Epstein Cole LLP lawyers if necessary; see G. Raymond Chang Ltd. v. Shopcast Television, [2008] O.J. No. 4823, 2008 CarswellOnt 7094 at para. 12 (S.C.J.) leave to appeal refused at 2009 CarswellOnt 657 (Div. Crt.).

[74] S.B. asserts that if I do not grant his motion, he will be prohibited from calling the Epstein Cole LLP lawyers on his Motion to Change. However, he is not foreclosed from raising the issue with the case management judge or with the judge presiding on the Motion to Change should the facts of the case change as it progresses.

[75] S.B.’s primary position is that his income has declined due to the actions of the Epstein Cole LLP lawyers. However, the evidence adduced by S.B. when examined objectively does not lead to that conclusion. S.B.’s claims do not have the necessary “air of reality”. For similar reasons, I cannot say that the Epstein Cole LLP lawyers would ever be in a position to provide relevant evidence to the court in relation to the issues in the Motion to Change. The history of the case leading up to this motion suggests that S.B. has a tactical motivation to separate J.M. from her counsel. J.M. would experience significant prejudice if she was not permitted to continue to work with her counsel of choice.

2. Does S.B.’s complaint to the Law Society about an Epstein Cole LLP lawyer justify disqualifying the firm?

[76] S.B. did not elaborate on this ground or provide me with any authority to suggest that a complaint to the Law Society about opposing counsel would disqualify that lawyer from acting for his or her client.

[77] In MacDonald the court confirmed at para. 18 that:

The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, are not bound to apply a code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction.

[78] I note that a complaint to the Canadian Judicial Council is not grounds for recusal of a judge: Cosentino v. Dominaco Developments Inc., 2018 ONSC 4092, [2018] O.J. No. 3620 at paras. 44-45 and see also Peoples Trust Co. v. Atas, 2018 ONSC 58, [2018] O.J. No. 7 (SCJ). It would be setting a dangerous precedent and opening the door to mischief to find that simply filing a Law Society complaint could ground the disqualification of the opposing counsel.

[79] In any event, Mr. Franks who is the subject of the Law Society complaint is no longer acting for J.M.

3. Is Epstein Cole LLP otherwise in a conflict of interest?

[80] S.B. does not allege that Epstein Cole LLP is in a traditional conflict of interest.

[81] He appeared to be asserting that one of more of the Epstein Cole LLP lawyers are motivated primarily by a desire to hurt S.B.’s professional reputation and livelihood and that they have done so. This “animus” puts them in a real or potential conflict of interest with their own client, J.M. and this is of particular concern as J.M. is a vulnerable party and this is a family law matter. Further the firm’s hostility toward him means that they are not motivated to facilitate settlement on behalf of J.M.

[82] The general rule is that lawyers do not owe a duty to the opposing party; this would be inconsistent with the duty they owe to their own clients: Hiller v. Hutchens, 2012 ONSC 5988, [2012] O.J. No. 6367 at paras. 17-18. However, in certain instances, lawyers whose relationship to their own clients is too close to permit them to exercise their role as counsel may be disqualified as was found in two cases to which S.B. referred the court: Zaldin and to McWaters v. Coke, 2005 ONCJ 73, [2005] O.J. No. 996. In Zaldin the lawyer was also the client’s uncle and he worked in a law partnership with the client’s father. In McWaters the lawyer was married to the client.

[83] The court in Zaldin at para. 12 summarized why the court is concerned with a relationship between lawyer and client that is too close:

The court must at all times have confidence that the lawyer will never knowingly allow false or misleading evidence to be presented to the court. The court must also have confidence that all lawyers will answer all questions from the court in a straightforward and honest manner, without having to worry about, or wonder whether there are extraneous considerations that could impair the lawyer's ability to act appropriately. [cite omitted]

[84] In Leach supra, the husband objected to the wife being represented by the firm at which she worked full time as a law clerk. The firm had represented the wife for the five years prior to the disqualification motion. The husband argued that since starting work at the firm, the wife’s lawyer had started to act aggressively, and this called into question her objectivity. McDermot J. did not agree and at paragraph 27, he stated:

… it is not every close relationship that results in a lawyer being removed from the record in matrimonial proceedings. In fact, there are few cases where the doctrine of personal interest conflict has been extended beyond an intimate relationship between counsel and client. In Chouinard v. Chouinard, 2007 CanLII 36076 (ON SC), [2007] O.J. No. 3279 (Ont. S.C.J.), the solicitor acted for his friend in matrimonial proceedings. D.K. Gray J. stated that an intimate relationship was necessary for there to be the required loss of objectivity. He stated at para. 27:

There is no prohibition against lawyers acting for friends, even good friends. It is only where the relationship becomes intimate and emotional that the Court will become concerned that the necessary degree of independence and detachment may not be present. I am not so satisfied in this case.

[85] S.B. did not assert that any of the Epstein Cole LLP lawyers had other than a professional relationship with J.M. rather, that their personal vendetta toward him created a conflict of interest with their own client who due to her vulnerabilities, was effectively their dupe.

[86] The evidence did not support S.B.’s allegation that J.M. and/or her lawyers were dealing with him in a manner designed to embarrass him, to hurt his professional reputation or otherwise.

[87] S.B. suggested that J.M. deliberately opted for litigation for this purpose but there are many reasons why alternate dispute resolution may not be appropriate for a particular party. A party may also prefer to litigate simply for strategic reasons; there is nothing inappropriate in this. If J.M. preferred to resolve the issues with S.B. through the court, that is her choice to make in consultation with her counsel. I draw no negative inferences from that choice.

[88] Similarly, there was nothing untoward about J.M.’s decision to commence proceedings at 393 University two years ago – this was the appropriate jurisdiction as both parties live in Toronto.

[89] I find nothing improper in J.M.’s counsel delivering documents to S.B. by fax or process server to his address for service in accordance with the Family Law Rules. The evidence did not support the allegation that Epstein Cole’s Process Server had been instructed to act inappropriately or that the process server had in fact acted improperly. I appreciate that S.B. would prefer that his staff not be privy to the details of his separation but that is not a ground for a finding of impropriety.

[90] S.B. stated that Mr. Franks had accused him of fraud and of making “false representations” to Stevenson J. in relation to the delivery of his reply affidavit before being served with J.M.’s affidavit. While Stevenson J. accepted that S.B. had a plausible explanation for the timing question, she specifically found that Mr. Franks had valid concerns about how S.B. was able to deliver his reply before J.M. had even served her responding affidavit and that Mr. Franks had properly raised the issue with the court.

[91] The relationship between S.B. and Mr. Franks was not necessarily positive, but this is not uncommon in litigation and can particularly be the case when one party is self-represented. I do not find that Mr. Frank’s behaviour toward S.B. strayed outside the norms expected of counsel. To the contrary, the e-mail exchange that S.B. relies upon to demonstrate interference with his judicial application reflected that even while advocating for his client, Mr. Franks had a genuine concern for S.B. and for how his lack of objectivity had the potential for collateral damage.

[92] There is nothing in this evidence to support the allegation that Mr. Epstein acted vengefully toward S.B. at any time. Mr. Epstein appropriately declined to act as a mediator in files in which S.B. was acting for one of the parties. When S.B. was alerted to Mr. Epstein’s position the first time on November 14, 2018, S.B. could have avoided any perceived future embarrassment by advising opposing counsel that he preferred other mediators.

[93] S.B. alleges that the Epstein Cole has interfered with his livelihood including his application for judicial appointment and that this is further indicia of animus toward him. On S.B.’s own evidence he made it known to Mr. Franks when negotiating the Separation Agreement that he was going to be applying for a judicial appointment. Mr. Franks’ later e-mail cautioning S.B. can easily be placed in this context. More importantly, again, I do not view this e-mail as a threat but as a plea for S.B. to retain counsel in order to inject some objectivity into the working relationship between them.

[94] S.B. also points to the fact that Epstein Cole LLP is acting pro bono for J.M. as indicative of a hostile motivation. There can be many reasons for a lawyer or firm to work pro bono including a desire to help a vulnerable client who is up against a more sophisticated or better-funded party in order to even the playing field. This issue was specifically addressed by McDermot J. in Leach wherein he found that the fee arrangement between counsel and client was not a basis for removal: at para. 53. I do not find Epstein Cole LLP’s decision to act pro bono for J.M. is part of any “strategic plan” to hurt S.B. financially or for any other improper motive.

[95] Having regard to all of the evidence even when considered as part of a possible pattern, I do not find that any of the Epstein Cole LLP lawyers had untoward animosity or hostility toward S.B. The working relationship between S.B. and Mr. Franks in particular was not ideal but that is not surprising and certainly not uncommon in litigation cases.

[96] The evidence did not support the allegation that any of the Epstein Cole LLP lawyers were acting other than in J.M.’s best interests and there was no suggestion of a blurring of the lines between a personal agenda of an Epstein Cole LLP lawyer and their duty to J.M. as suggested by S.B.

[97] In terms of S.B.’s allegation that Epstein Cole LLP will not foster settlement, whether there is an expeditious settlement of the case will depend upon how all of the parties approach the issues. It could certainly open the floodgates were the court to find that a failure to facilitate early settlement was a ground to disqualify counsel. Those parties who fail to take reasonable settlement positions should generally expect to be exposed to an order for costs rather than a motion to remove counsel of record.

4. Would there be prejudice to J.M. if Epstein Cole LLP were disqualified from acting for her?

[98] As I have already found above, to remove Epstein Cole LLP as J.M.’s counsel of choice would be highly prejudicial to her.

5. Does Epstein Cole LLP’s representation of J.M. raise concerns about the administration of justice?

[99] S.B. asserts that to permit Epstein Cole LLP to continue to act for J.M. in the face of their personal hostility toward him will call into question the fairness of the process which should be “free from bias, self-interest and suspicion”.

[100] S.B. further summarizes his position under this heading as follows taken from his Affidavit sworn July 17, 2019:

82. I am concerned about the effects of allowing EC to remain as solicitors for the Respondent as they may distort their evidence in favour of the Respondent and, whatever the outcome is, there will be questions swirling as to the fairness of the process and the outcome.

83. I am concerned that EC’s duty as witness to tell the truth might conflict with their duty as advocates.

84. Whether I prevail or not in this case will depend on witness testimony which must be free from bias, self-interest ad suspicion. EC cannot be an unbiased witness if permitted to also serve as solicitors. To allow EC to remain as solicitors for the Respondent would place the Honourable Court in the position of making findings of credibility of one of its own officers of the court.

[101] S.B.’s position is essentially a re-statement of his argument that Epstein Cole LLP should be disqualified as J.M.’s lawyers as they will be called as witnesses. I have already ruled on this issue.

[102] S.B. also raised concerns about the perception of the administration of justice. In particular that Epstein Cole LLP cannot act in an unbiased manner due to their personal agenda against him. It should go without saying that if S.B. was acting as counsel in this case and not representing himself, he would have better perspective.

[103] S.B. asks the court to consider that the judicial process must be “kept so pure as to be free from all suspicion of being tainted”. S.B.’s arguments are highly subjective: he clearly has his suspicions about what he perceives J.M.’s lawyers have and have not done to impact his professional reputation, his livelihood and his application for judicial appointment. He may also have concerns about the fairness of the process and the outcome, but it is not S.B.’s perception that governs, rather, it is the objective view of the issues from the vantage point of the fair minded and reasonably informed member of the public.

[104] When examined objectively his allegations simply do not stand up to scrutiny.

6. Summary.

[105] Parties are entitled to their counsel of choice. This is a foundational tenet of our common law legal system. The Supreme Court of Canada in MacDonald has confirmed that this right should not be interfered with without good cause.

[106] The evidence before the court must be assessed on an objective basis not from the perspective of S.B., J.M., or Epstein Cole LLP but of a fair-minded, reasonably informed member of the public.

[107] S.B. bears the burden of demonstrating that this fair-minded and reasonably informed person would find it necessary to remove Epstein Cole LLP as J.M.’s lawyer in order to avoid the risk of impaired representation and/or to maintain the repute of the administration of justice.

[108] The evidence does not support S.B.’s contention that any of the Epstein Cole LLP lawyers have undertaken an improper course conduct designed to harm his professional reputation, livelihood or otherwise. His claims in this respect do not have the requisite air of reality and as such it is highly unlikely let alone probable that any of the Epstein Cole LLP lawyers would be called upon to give relevant evidence in this case. Furthermore, I find that S.B.’s motivation had a tactical component. S.B. has not met the burden of demonstrating that Epstein Cole LLP should be removed as J.M.’s counsel of record at this time due to the possibility that any of the firm’s lawyers would be called as witnesses.

[109] The fact that S.B. has lodged a complaint with the Law Society against Aaron Franks does not in of itself create a conflict of interest to ground disqualification of Mr. Franks personally or the Epstein Cole LLP firm.

[110] While the relationship between S.B. and Epstein Cole LLP may be strained, I do not find that there was any untoward animus exhibited toward S.B. by any of the Epstein Cole LLP lawyers. S.B. is a seasoned family lawyer. If he was acting as counsel for a client in this case, many of the slights to which he feels subjected would have gone unremarked or perhaps shelved away – appropriately - as so much posturing. S.B. somewhat understandably, has lost objectivity in his interpretation of the events and issues.

[111] Epstein Cole LLP does not have a duty to S.B.: Hillier supra. The fact that S.B. had many files against Epstein Cole LLP or had retained Philip Epstein to mediate numerous times in the past does not create a duty of care. Similarly, the fact the Mr. Epstein agreed to act as referee on S.B.’s application for judicial appointment does not constitute a conflict of interest.

[112] The relationship between J.M. and the Epstein Cole LLP lawyers does not raise any concerns about the firm’s ability to discharge its duties to her in an impartial manner as was the case in Zaldin or McWaters or otherwise. The firm’s decision to act for her pro bono does not alter this conclusion.

[113] S.B. has neither discharged the burden of demonstrating that Epstein Cole LLP is in a conflict of interest nor has he has satisfied the court that J.M.’s representation by Epstein Cole LLP is somehow impaired.

[114] As cautioned by the court in Corrado di Rosa, these motions can have a tactical element and can be prone to abuse. I agree wholeheartedly with McDermot J.’s comments in Leach (supra) at para 37:

….There is good reason for this objective standard; the court must take care to guard against a client seizing upon a supposed conflict to rid himself of an opposing lawyer who he may think is getting in the way of a reasonable settlement. That would give rise to opportunistic attempts to remove an seemingly difficult lawyer upon discovering any sort of outside relationship between the opposing lawyer and client.

[115] While I find that S.B. may have been motivated to bring this motion due to his perception of how he has been treated by the Epstein Cole LLP lawyers, I also find that his motion has a tactical component. There are a number of reasons why it would be advantageous to S.B. for J.M. to be separated from her current counsel. S.B. has been trying consistently to negotiate directly with J.M. despite acknowledging that she is vulnerable and contrary to her repeated requests to go through counsel. S.B. is representing himself in these proceedings in order to save money and has recently learned that J.M. has the benefit of pro bono counsel. For these same reasons, it would be prejudicial to J.M. to be required to retain new counsel particularly after working with Epstein Cole LLP for the past two years.

[116] Viewed through the eyes of the fair-minded and reasonably informed person, I do not find that to permit Epstein Cole LLP to continue to represent J.M. would impugn either the respect for the high standards of the legal profession or for the administration of justice of a whole. On the contrary, to remove the firm based on S.B.’s stated grounds and having regard to the evidence adduced could.

[117] S.B. has many years of experience as a very successful family lawyer with a commitment to alternative dispute resolution. I fear that S.B. has allowed his position as a participant in the process to cloud his judgment in terms of the actions of J.M. and her lawyers. I can understand and sympathize with S.B.’s feeling of vulnerability as his professional aspirations appear to him to be compromised. However, viewed dispassionately and objectively, the allegations raised by S.B. do not ground the relief he is seeking on this motion.

VI. ORDER

[118] S.B.’s motion to disqualify any of the Epstein Cole LLP lawyers from acting for J.M. is dismissed.

[119] The parties shall have until October 24, 2019 at noon to deliver their briefs for the Case Conference.

[120] Epstein Cole LLP and J.M. shall deliver submissions with respect to costs on or before November 8, 2019. S.B. shall deliver his submissions with respect to costs on or before November 18, 2019. Epstein Cole LLP and J.M. shall deliver reply submissions on or before November 25, 2019. All costs submissions are to be filed with the court and a duplicate sent by e-mail to durham.scj@ontario.ca attention Karen Hamilton.

JUSTICE L.E. FRYER

[^1]: I received correspondence from counsel for Epstein Cole LLP on October 15, 2019 enclosing a letter from Danielle Wilson of the Law Society of Ontario advising that the Law Society was not going to take further action as this motion involved substantially the same issues as did his complaint and there was no compelling public interest to warrant further investigation.