COURT FILE NO.: CV-16-545824
MOTION HEARD: 2019 11 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ara Papazian and Arpy-Ara Company Limited, applicants
v.
Morris Manning, Q.C. Professional Corporation, Frederick J. Shuh and Shuh Cline & Grossman, respondents
BEFORE: MASTER R. A. MUIR
COUNSEL: Theresa R. Simone for the respondent Morris Manning, Q.C. Professional Corporation
Jeffrey Silver, as agent for counsel for the applicants
REASONS FOR DECISION
[1] The applicants bring this motion for an order setting aside and quashing a summons to witness issued to Leo Klug, counsel for the applicants. The respondents are opposed.
[2] This is an application under the Solicitors Act, RSO 1990, c. S.15. The applicants seek an order referring for assessment various legal accounts delivered by the respondents.
[3] This motion relates to an appearance by Mr. Klug before Master Wiebe on August 31, 2016. The applicants had brought a motion seeking the production of a document from the respondent Morris Manning, Q.C. Professional Corporation (“Mr. Manning”). Mr. Manning was not available on August 31, 2016 and Mr. Klug apparently agreed to attend on that day and adjourn the motion to another date. It is alleged that Mr. Klug did not advise Master Wiebe of the agreement to adjourn the motion. Rather, the motion proceeded on August 31, 2016 in Mr. Manning’s absence and the applicants obtained an order to produce the document along with a costs order against Mr. Manning.
[4] Mr. Manning then brought a motion before Master Wiebe on September 20, 2016 and obtained an order vacating the previous order of Master Wiebe based on the alleged failure of Mr. Klug to advise the court of the agreement to adjourn the August 31, 2016 motion.
[5] Following those events, Mr. Manning brought a motion seeking the removal of Mr. Klug as lawyer of record for the applicants and a permanent stay of this application. That motion has yet to be heard.
[6] Mr. Manning takes the position that Mr. Klug should be removed as lawyer of record in the interest of the administration of justice. The removal motion is focused on the alleged misconduct of Mr. Klug during his August 31, 2016 appearance before Master Wiebe and subsequently. Mr. Manning seeks to examine Mr. Klug as a witness on the pending removal motion.
[7] I agree with Mr. Silver as to the test to be applied on this motion. Where a party seeks to examine counsel for an adverse party special jurisprudence applies. Such a summons should not be permitted absent exceptional circumstances showing high materiality and the necessity of the lawyer’s evidence. See R. v. 1504413 Ontario Limited, 2008 ONCA 253 at paragraphs 13 and 17 and Konstan v. Berkovits, 2013 ONSC 6169 at paragraphs 30 and 31. The burden is on the person seeking to examine the lawyer to establish that the witness would likely or probably have evidence material to the issues raised on the underlying motion or other proceeding. See R. v. Harris, 1994 CanLII 2986 (ON CA), [1994] OJ No. 1875 (CA) at paragraphs 4 and 5. The practice of issuing a summons to opposing counsel should be avoided whenever possible, especially when it involves requiring a lawyer to testify against his or her client. See R. v. 1504413 Ontario Limited at paragraphs 13 and 16.
[8] In my view, Mr. Manning has met the burden on this motion. This is one of those rare situations where a summons to witness issued to an opposing lawyer should be upheld.
[9] It is obvious from the record that Mr. Klug has evidence relevant to the removal motion. It is equally clear that his evidence is necessary as he is the only person who can provide the evidence. Only Mr. Klug appeared before Master Wiebe on August 31, 2016. Mr. Manning was not there. Mr. Papazian did not attend. As I stated in my reasons for decision on the motion to prohibit Mr. Klug from appearing as counsel on this motion:
The only grounds being advanced by Mr. Manning for the removal of Mr. Klug are based entirely on Mr. Klug’s alleged actions and statements. Mr. Manning alleges that Mr. Klug disrespected and misled the court and sent correspondence containing false information to Mr. Manning. It is clear from the applicants’ evidence that Mr. Klug is the source of their evidence in response to those allegations. Indeed, it is obvious from the circumstances of these motions that Mr. Klug is the only person who can provide such evidence.[^1]
[10] In my view, the applicants have conceded the relevance of Mr. Klug’s evidence as part of their argument on this motion. The applicants submitted that the transcript from the appearance before Master Wiebe on September 20, 2016 was the best evidence of what transpired in court on August 31, 2016 and no further evidence is required. They argued that memories fade over time and the submissions made in court three weeks after the August 31, 2016 appearance provide all the evidence Mr. Manning needs in support of his motion. Nothing will be gained by examining Mr. Klug three years after the events.
[11] This submission confirms the relevance of Mr. Klug’s evidence. Moreover, I do not accept this argument as a basis for setting aside the summons to witness. A witness statement or other evidence given soon after an event giving rise to a claim is not a substitute for evidence under oath at discovery or trial, for example. In my view, the same proposition applies on this motion. Mr. Klug’s statements before Master Wiebe or in correspondence with Mr. Manning or the law society are simply not a substitute for his sworn evidence within the context of the removal motion. I accept that memories fade over time. Mr. Klug is a busy lawyer and may have little additional recollection of what took place in August and September 2016. If he is unable to recall any additional details, then that will be his answer.
[12] I do not view this as a situation where a lawyer is being compelled to give evidence against his client as was the situation in the some of the authorities relied upon by the applicants.[^2] The removal motion is solely about Mr. Klug’s conduct in court in August and September of 2016 and his interaction with Mr. Manning before and after those appearances. Mr. Klug will still be able to object to questions based on lawyer/client privilege if the examination strays into that territory.
[13] Finally, I do not view the summons issued to Mr. Klug as an abuse of process. It is clear that Mr. Klug possesses evidence relevant to issues on the removal motion. I have also found that, in the circumstances of this proceeding, he is the only person who can provide such evidence.
[14] I accept that the underlying merit of a motion or other proceeding may be considered by the court when determining whether the requested examination is an abuse of process. See Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), 2002 CanLII 41606 (ON CA), [2002] OJ No. 1445 (CA) at paragraph 57. However, it is important to note that the court in Ontario Federation of Anglers & Hunters determined that the underlying application had no merit. Of course, the court’s power to remove counsel of choice is to be exercised with the highest level of restraint, especially where the basis of the removal request is alleged lawyer misconduct. Nevertheless, there may be circumstances where the proper administration of justice compels the removal of counsel. See Zawadzki v. Matthews Group Ltd., [1998] OJ No. 43 (GD) at paragraph 6.
[15] I am unable to conclude, for the purposes of this motion, that the removal motion is without merit. From the record before the court, it appears that there was an agreement to adjourn the August 31, 2016 motion and that Mr. Klug did not advise Master Wiebe of that agreement. It also appears that Mr. Klug may have misled Mr. Manning about what happened in court on August 31, 2016. The question of whether Mr. Klug’s conduct justifies the extraordinary order of removing him as counsel of choice for the applicants is not a matter to be determined on this motion. In my view, the record shows that there may be some basis for the removal motion and that is enough to overcome the suggestion of abuse of process.
[16] The applicants’ motion is therefore dismissed. Mr. Klug shall attend to be examined as a witness on a pending motion on a date agreed to by counsel.
[17] If the parties are unable to agree on the issue of the costs of this motion, they shall provide the court with brief submissions in writing by December 13, 2019. These submissions may be sent directly to me by email.
[18] Counsel shall contact the court and arrange for a further case conference following Mr. Klug’s examination. The parties may also arrange for a case conference if any difficulty arises in connection with Mr. Klug’s examination.
Master R. A. Muir
DATE: 2019 11 13
[^1]: Papazian v. Morris Manning, Q.C. Professional Corporation, 2018 ONSC 6398 (Master) at paragraph 13.
[^2]: See for example, R. v. 1504413 Ontario Limited at paragraphs 13 and 16 and Opara v. Opara, 2014 ONSC 5579 at paragraph 11.