COURT FILE NO.: CV-13-490665 (Toronto)

MOTION HEARD: 2019 11 21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Diana Hordo and Michael J. Hordo

v.

Arnold H. Zweig

BEFORE: MASTER R. A. MUIR

COUNSEL: Plaintiffs appearing in person

Peter Smiley for the defendant

Debra Eveleigh for the non-party LawPro

Frank Caruso for the non-party Law Society of Ontario

Mariam Moktar for the non-parties Lynda Ciaschini and Charles Sinclair

REASONS FOR DECISION

[1] This is a lawyer negligence action. The plaintiffs have brought what they describe as an “omnibus” masters’ motion seeking various relief.

RELIEF REQUESTED

[2] The main form of relief is an order removing Mr. Leigh Youd and his firm as lawyers of record for the defendant. The plaintiffs also seek orders for the production of various documents from the defendant and non-parties, along with an order for the examination of non-parties. The plaintiffs ask that the defendant answer outstanding undertakings and re-attend for a continued examination for discovery. Finally, they seek an order striking various paragraphs of the defendant’s statement of defence.

[3] The defendant and the non-parties are opposed to the relief sought by the plaintiffs.

REMOVAL OF MR. YOUD

[4] The primary reason the plaintiffs want the defendant’s lawyer removed relates to a motion brought by the plaintiffs’ former lawyer in early November 2018 to have himself removed as lawyer of record for the plaintiffs. The plaintiffs argued that their former lawyer was compelled to bring that motion at the behest of the defendant’s lawyer, LawPro and the Law Society of Ontario (“LSO”). The plaintiffs submitted that all these persons and organizations were working together to force the plaintiffs’ lawyer off the record thereby leaving the plaintiffs with no representation.

[5] The plaintiffs rely on events leading up to and following a pre-trial conference that took place before Justice Sanderson on September 26, 2018. The plaintiffs allege that they had not heard from their former lawyer for many months leading up to the pre-trial conference. They became concerned enough to take the unusual step of filing their own pre-trial brief in advance of the pre-trial even though their former lawyer had delivered a brief on their behalf.

[6] When the plaintiffs arrived at the pre-trial, they made several observations that raised concerns from their perspective. Mr. Youd attended the pre-trial with a representative of LawPro who was not identified to the plaintiffs. Their former lawyer would not meet with the plaintiffs during or after the pre-trial. The LawPro representative spoke with the plaintiffs’ former lawyer and apparently left the pre-trial at the same time as the plaintiffs’ former lawyer. Following the pre-trial, arrangements were made to attend to be spoken to court in order to deal with the upcoming trial date. Prior to that hearing, Mr. Youd wrote to the former lawyer for the plaintiffs stating, among other things, that the plaintiffs’ former lawyer should obtain an order removing himself as counsel of record by November 15, 2018.

[7] The plaintiffs argued that the reasonable inference from all of this is that Mr. Youd, LawPro, LSO and the defendant were fully aware of these facts and were instructing the plaintiffs’ lawyer on what to do with this claim and specifically to bring a motion to remove himself as lawyer of record. Mr. Hordo’s evidence is that Mr. Youd, his firm, LawPro, LSO and Mr. Zweig interfered with the plaintiffs’ right to counsel by “ordering, bribing and coercing” the plaintiffs’ former lawyer to remove himself as lawyer of record for the plaintiffs.

[8] In my view, none of the evidence supports the plaintiffs’ argument that their former lawyer was directed in any way or specifically compelled to bring the removal motion by the defendant’s lawyer, LawPro, or anybody else. The evidence does not support the plaintiffs’ contention that Mr. Youd should be removed as lawyer of record for the defendant. The removal of a lawyer and the denial of a party of his or her lawyer of choice is a serious matter. Such an order should not be made lightly and only in the clearest of cases. See Tiffin v. Teplitsky Colson LLP, 2018 ONSC 5122 at paragraph 29.

[9] It is clear from the evidence that the relationship between the plaintiffs and their former lawyer had broken down before the pre-trial even took place. The plaintiffs stated that they had not heard from their former lawyer for several months before the pre-trial conference. They were so concerned that they prepared their own pre-trial memorandum. That pre-trial memorandum included a copy of an email the plaintiffs sent to their former lawyer on September 17, 2018. That email was also included in the plaintiffs’ evidence on this motion. It states that the plaintiffs asked their former lawyer for an update on numerous occasions without a response. They asked that he obtain an expert report. They were clearly concerned about how their matter was being handled.

[10] Following the pre-trial, the plaintiffs sent more correspondence to their former lawyer alleging a variety of unprofessional conduct.

[11] The affidavit filed in support of the motion by the plaintiffs’ former lawyer to be removed from the record included detailed evidence. Their former lawyer’s evidence was that the lawyer/client relationship had broken down in May 2018. The plaintiff’s former lawyer wrote to the plaintiffs in June 2018 stating that he could no longer act on their behalf. He enclosed a draft notice of intention to act in person. He wrote to the plaintiffs again in July 2018 with the same message. There were more communications of a similar nature after the pre-trial conference. Nowhere in the evidence is there any suggestion by the plaintiffs’ former lawyer that he was being forced to bring a removal motion by Mr. Youd or anyone else. It is also noteworthy that the plaintiffs appeared at their former lawyer’s motion and consented to the removal order.

[12] I see nothing unusual about a representative of LawPro being present at the pre-trial conference. LawPro is the defendant’s insurer. Its involvement is necessary if there is to be any chance of reaching a settlement. The fact that the plaintiffs’ former lawyer spoke to the LawPro representative and left the pre-trial at the same time is not an indication of anything improper. The fact that there was a lack of communication between the plaintiffs and their former lawyer is consistent with their former lawyer’s assertion that the relationship had broken down several months before the pre-trial.

[13] Mr. Youd’s letter of October 17, 2018 does not instruct the plaintiffs’ former lawyer to get off the record for the plaintiffs. The letter simply sets out the conditions on which the defendant was prepared to consent to an adjournment of the trial date to accommodate the plaintiffs. It was perfectly reasonable for the defendant to want the issue of the plaintiffs’ representation to be clarified in some fashion.

[14] Importantly, there is no direct evidence on this motion from the plaintiffs’ former lawyer. The plaintiffs suggested that their former lawyer has health concerns and they did not want to trouble him with this matter. However, the allegations the plaintiffs are making are very serious as is the relief they are seeking. If the plaintiffs seek to advance such serious allegations it is incumbent on them to provide direct evidence. It is not enough to rely on inference and speculation. This is especially so in these circumstances where the plaintiffs’ allegations are completely contrary to the evidence the plaintiffs’ former lawyer filed and relied upon on his removal motion.

[15] I also see nothing improper about the affidavit Mr. Youd delivered in response to this motion. The argument raised by the plaintiffs about whether Mr. Youd’s cell phone was on during the pre-trial is not persuasive. Mr. Youd stated that his cell phone had run out of battery power. The plaintiffs suggested that this was false because they sent him a text message at the time that their phone showed as having been delivered. That assertion is contradicted by the plaintiffs’ own evidence, being the document they produced from Apple. Delivered means that the message has arrived at Apple’s servers. It does not mean that the message has been delivered to the recipient’s phone. There is no reason to doubt Mr. Youd’s evidence.

[16] I also see nothing improper with Mr. Youd occasionally referring to Mr. Hordo as “barrister and solicitor”. Mr. Hordo is a retired lawyer. Referring to him as “barrister and solicitor” is incorrect. However, there is no evidence that this was done deliberately or for some nefarious purpose or has somehow prejudiced the plaintiffs in any way.

[17] The fact that the plaintiffs’ former lawyer apparently continues to represent the plaintiffs in other proceedings may be surprising, but it is not evidence of anything improper in connection with this proceeding. The evidence is clear. The lawyer/client relationship between the plaintiffs and their former lawyer, at least in terms of this action, had completely broken down by the fall of 2018.

[18] In summary, there is simply no evidence of improper conduct on the part of Mr. Youd, LawPro, LSO or the defendant. The plaintiffs’ allegations are pure speculation based on inference and conjecture and nothing more. They have failed to provide any direct evidence to support their serious allegations of misconduct. The motion to remove Mr. Youd and his firm is dismissed.

OTHER RELIEF

[19] The plaintiffs’ request for an order for the identification and examination of non-parties and the production of documents from non-parties is made in relation to the motion to remove the defendant’s lawyer and in respect of the allegations of improper conduct generally. I have dismissed the plaintiffs’ removal motion and I have found that there is no evidence to support the allegations of misconduct. The same reasoning also applies to the request for documents from the defendant and his lawyer in relation to the alleged improper conduct. The plaintiffs’ motion for non-party production and examinations and further production from the defendant and his lawyer is therefore also dismissed.

[20] I see no basis for striking paragraphs from the statement of defence. First, the pleadings in this action have been closed for a considerable period. Oral discoveries have occurred. This is not a situation where the impugned paragraphs need to be struck so that the plaintiffs can properly plead to the defence or to prevent unfairness at discovery.

[21] Second, the plaintiffs appeared to argue that the impugned paragraphs should be struck because they have been made irrelevant by subsequent events or have been shown by the evidence to be incorrect. Some of the impugned paragraphs simply set out the defendant’s version of the general terms of his retainer, his billings and work done for the plaintiffs. Other paragraphs set out the particulars of the defendant’s specific work for the plaintiffs and the instructions he was given. Others respond to specific allegations in the statement of claim with respect allegations of negligence in relation to a claim made by the plaintiff Diana Hordo. The plaintiffs may not agree with the defendant’s version of events but there is nothing improper about the impugned paragraphs. They simply respond to issues clearly raised in the statement of claim. The merits of this dispute are not before the court on this motion. The merits are a matter for the trial judge or perhaps a motion for summary judgment.

[22] It appears that the defendant has answered his undertakings. They were answered in a letter to the plaintiffs’ former lawyer in August 2016 and again in correspondence sent directly to the plaintiffs on October 9, 2019. The undertakings set out in the chart have been answered. It may be that the plaintiffs disagree with the answers or may have follow-up questions, but answers have been provided. In fairness to the plaintiffs, they should be permitted an opportunity to ask follow-up questions. However, given the limited number and nature of the answers to undertakings, such follow-up examination shall be by way of written questions and answers.

[23] It does not appear that the plaintiffs have received their complete file from their former lawyer. The evidence is not clear as to whether they have followed up with their former lawyer about this issue. However, that is not the responsibility of the defendant. The defendant has, in the past, offered to provide the plaintiffs with further copies of the defendant’s productions upon the plaintiffs paying reasonable photocopying costs. That offer is reasonable in the circumstances and the defendant has advised that the offer remains open.

[24] During argument, the plaintiffs requested copies of any policies of insurance that may be available to respond to the claims being made by the plaintiffs in this action. Counsel for LawPro advised the court that she would be prepared to provide the plaintiffs with a link to the LawPro website where the policies from 2013 to 2019 can be found. In my view, this is sufficient disclosure in the circumstances of this action. The plaintiffs also requested all related insurance documents and communications involving the defendant. That request goes beyond the requirements under Rule 31.06(4) of the Rules of Civil Procedure, RRO 1990, Reg. 194 and was only raised for the first time during argument. No order will be made for the production of those documents.

[25] During their reply argument, the plaintiffs requested an order for the forensic examination of Mr. Youd’s phone. Given my findings above, the plaintiffs have failed to establish the relevance of any such examination. Moreover, a request for such an intrusive order should only be made by way of a formal motion on proper evidence. Reply argument is not the time to make such a request.

[26] Finally, the plaintiffs confirmed during argument that they were not seeking any relief against the non-parties Lynda Ciaschini and Charles Sinclair.

ORDER

[27] I am therefore ordering that the plaintiffs be permitted additional examination for discovery of the defendant by way of follow-up questions in relation to matters arising from the defendant’s answers to undertakings. This additional discovery shall be by way of written questions and answers. The balance of the relief on the plaintiffs’ motion is dismissed.

[28] If the parties and non-parties are unable to agree on the issue of the costs of this motion, they shall provide the court with brief submissions in writing. The submissions of the defendant and the non-parties, if any, shall be delivered by January 3, 2020. The plaintiffs’ submissions shall be delivered by February 3, 2020. Any reply shall be delivered by February 14, 2020. All costs submissions shall be filed with masters’ administration, 393 University Avenue, Toronto, 6th floor.

Master R. A. Muir

DATE: 2019 11 26