Superior Court of Justice - Ontario

COURT FILE NO.: CV-17-586853

MOTION HEARD: 20191023

RE: Luisa Aguas, Plaintiff

AND:

Sokoloff Lawyers, Wendy Sokoloff and Sharon Ramsden, Defendants

BEFORE: Master Jolley

COUNSEL: L. Covens and C. Bruder, Counsel for the Moving Party Defendants Robert Kostyniuk, Counsel for the Responding Party Plaintiff

HEARD: 23 October 2019

REASONS FOR DECISION

OVERVIEW

[1] The defendants seek an order removing John Bruggeman as plaintiff’s counsel in this solicitor’s negligence action.

[2] The plaintiff argues that the defendants were negligent in handling two motor vehicle accident actions in which they represented her. She argues that they failed to ensure the actions were ready for trial, failed to obtain and deliver appropriate medical records and reports, removed themselves from the record shortly before her scheduled trial and placed her in the position where the actions were ultimately dismissed.

[3] The defendants deny they were negligent. They take the position, in the alternative, that any loss the plaintiff suffered was not caused by them but by either the plaintiff’s own actions or by the actions of Mr. Bruggeman, who acted for the plaintiff in the MVA actions for a time after the defendants were removed as counsel. The defendants argue that that Mr. Bruggeman will be a key witness at trial and may also bear responsibility for the plaintiff’s losses.

BACKGROUND

[4] The plaintiff was involved in two motor vehicle accidents, one in October 2001 and one in March 2005. The defendants assumed carriage of Action CV-03-10022 in April 2006 and in March 2007 commenced Action CV-07-0970 in respect of the plaintiff’s March 2005 MVA. In 2012 the two actions were ordered tried together or one after the other.

[5] The focus of this action is on the representation that the defendants provided the plaintiff throughout their nine year retainer. This includes steps they took to be ready for trial when the actions were first on the May 2015 blitz sittings and their subsequent actions when the trials were adjourned on consent to the January 2016 sittings.

[6] On 20 November 2015, before the trials were set to commence in January, the defendants obtained an order removing themselves from the record. In compliance with the November 2015 order removing her counsel, the plaintiff served a notice of intention to act in person, while she searched for new counsel. In January 2016 the actions were adjourned from the January 2016 sittings to a February to be spoken to court, when the actions were set down for trial for the May 2016 sittings peremptory to the plaintiff. They were spoken to on 26 February 2016, at which time the plaintiff advised that she was prepared to proceed with the May 2016 trial even if self represented. Throughout this period and at all the court attendances, the plaintiff represented herself.

[7] It soon became apparent to the plaintiff that she was in no position to represent herself in a lengthy personal injury jury trial. In April 2016 she retained Mr. Bruggeman “for the limited purpose of assisting [her] in obtaining an adjournment of the jury trial currently scheduled to proceed on a peremptory basis during the trial blitz commencing May 9, 2016 at Brampton.”

[8] The defendants did not consent to an adjournment and, in May 2016, Mr. Bruggeman brought a motion for leave to adjourn the trial. Mr. Bruggeman advised the court that, if he were retained, he would require at least 8-9 months to take the steps needed to have the matters ready for trial. The adjournment request was denied as was the reconsideration request, given the time that had elapsed since both MVAs and since one adjournment had already been granted after the defendants removed themselves as plaintiff’s counsel. The court noted that the delay would be significant as the plaintiff wished to retain both a reconstruction expert and a chronic pain specialist, neither of which had been retained to that point.

[9] On 17 May 2016, the plaintiff attended in court, self-represented, with defence counsel, to select a jury. During that attendance, the court ordered the plaintiff to provide a summary of the anticipated evidence of her brother and “a summary of the opinions which Dr. Dubins, Dr. Nigel Clemens and Dr. Gary Lee will testify to and on what bases he [sic] reached those opinions”. The plaintiff was also advised to arrange summonses for her witnesses. The actions were called to trial on 1 June 2016 with the plaintiff continuing to represent herself. At the outset of the trial, the defendants brought a motion to dismiss the actions due to the plaintiff’s failure to provide the documents and summaries she had been ordered to produce. The plaintiff advised that she did not have the medical reports from which to prepare summaries and had already given the evidence of her brother so did not know what else was required of her to comply with the pre-trial order of May 17. After hearing from the plaintiff, the court granted the defendants’ motion and dismissed her actions.

[10] The plaintiff retained Mr. Bruggeman to appeal the dismissal of her actions, which he successfully did. In overturning the dismissal, the Court of Appeal directed the Superior Court to reconsider the dismissal order and gave guidance as to the sort of material expected on the reconsideration motion. It held that the reconsideration of whether the matters should proceed should be on a more fulsome record which minimally should include a full history as well as some detail, on the available medical evidence, addressing the merits of the plaintiff’s claims.

[11] The motion for leave to restore both actions to the trial list was heard on 9 June 2017 and dismissed. Justice Daley found that no meaningful evidence whatsoever had been adduced by the plaintiff in response to the direction of the Court of Appeal that a fulsome evidentiary record be presented. He further noted that the plaintiff remained in complete non-compliance with the pre-trial order of May 2016 and that her “blatant and unexplained disregard for the order of this court, standing alone would form a proper basis for dismissing the present motion and dismissing both actions.” He also noted that the plaintiff had not provided new medical evidence. His Honour stated, in part, that Mr. Bruggeman had acted for the plaintiff at the time of filing the appeal and the reconsideration motion and His Honour assumed that Mr. Bruggeman advised the plaintiff that she had to comply with the earlier trial management order.

LEGAL ANALYSIS

[12] The relevant law has been helpfully summarized by my colleague Master Graham in his recent decision of Royal Bank of Canada v. Bouzios [2019] O.J. No. 3100 and I adopt that statement of the applicable law.

[13] I have considered the factors enumerated in Essa (Township) v. Guergis; Membery v. Hill 1993 CanLII 8756 (ON SCDC), [1993] O.J. No. 2581 (Div. Ct.) (“Essa”) at paragraph 48 and I note that the decision to remove counsel is very fact specific.

[14] In reviewing the Essa factors in the context of these facts, two factors stand out: (a) the significance of the evidence to be led, and (b) the impact of removing counsel on the plaintiff’s right to be represented by counsel of choice.

(a) Significance of the Evidence to be Led

[15] The plaintiff has stated that she has no intention of calling Mr. Bruggeman as a witness; the defendants have stated that they will likely call him if the plaintiff does not. The defendants argue that Mr. Bruggeman will have evidence as to why the plaintiff did not comply with the pre-trial orders and did not take into account the direction of the Court of Appeal as to the sort of material to be put before the court on the reconsideration motion. I am not satisfied that the evidence of Mr. Bruggeman on this point is relevant for two reasons. First, the plaintiff has confirmed that she did not comply with the order and has set out the reasons why. She can be examined for discovery further on this point, if needed. She made the decisions and has taken responsibility for what was filed and not filed on that motion and also with respect to the earlier adjournment motion.

[16] Second, I am not convinced that the reasons for the non-compliance are relevant. Whether the order was not complied with because the plaintiff followed legal advice or ignored legal advice or for some other reason, the fact is that it was not complied with and led to the court dismissing the actions. The plaintiff will have to prove at trial that, but for the negligence of the defendants, she would not have suffered the loss of her actions (Crawford-Montaque v. Benjamin 2017 ONSC 6729). Even if the defendants were negligent, it is the dismissal order that provides an argument that the causal link to the defendants was broken, however it was obtained. The same logic follows with respect to the adjournment motion and the reconsideration motion. Whether the motions were well argued or poorly argued, the material filed fulsome or deficient, the order was made.

[17] If I am wrong and the defendants do need to establish that the actions would not have been dismissed or remain dismissed but for the negligence of Mr. Bruggeman in arguing the reconsideration motion or in failing to obtain the adjournment initially, they can make that argument based on the material in the record. Mr. Bruggeman’s evidence as to why he did what he did would be of limited or no assistance and cross-examining him on his litigation strategy seems inappropriate or at least an unnecessary sideshow. As stated above, the plaintiff herself will have the evidence as to what material she had and did not have that could have been filed. Mr. Bruggeman’s litigation file has been disclosed to the defendants, other than the retainer agreement and communications relating to that retainer. The court should be reluctant to remove counsel when, as noted in Essa, the evidence may be available from other witnesses, such as the plaintiff, or admissions or concessions may be made that would make the evidence of counsel unnecessary. There is no mystery in what was filed on the reconsideration motion and the defendants are free to argue that other material, in addition to what was in the files they turned over to the plaintiff, should have been filed or obtained and was not.

[18] I note as an example that it is suggested that Mr. Bruggeman would be called to testify about why he did not go on the record when asked by Justice Ricchetti in May 2016 whether he would do so. I would be surprised if deciding not to go on the record could amount to negligence on the part of Mr. Bruggeman, but the fact is he did not go on the record and the defendants are free to make what they will of that fact. Further, the trial judge can determine the admissibility or relevance of that kind of evidence and he or she can also set the parameters, if any, for Mr. Bruggeman’s trial involvement if his evidence is determined to be relevant.

[19] The plaintiff alleges that the defendants failed to prepare her actions for trial, failed to serve appropriate medical records, failed to obtain and serve expert reports and failed to adequately investigate and secure information that would assist her cases. Unlike the case of 1298781 Ontario Inc. v. Levine 2013 ONSC 2894, [2013] O.J. No. 2263, it is not the lawyer whose removal is sought who is going to testify about these alleged shortcomings. The plaintiff has advised that she will retain an independent expert on those points. In Levine, the plaintiff’s lawyer, Mr. Bieta, was ordered removed as the plaintiff was arguing that the negligence of Mr. Levine in defending them hampered Mr. Bieta’s subsequent handling of their defence at trial. It was Mr. Bieta who alone had evidence was to how Mr. Levine’s alleged negligence impacted Mr. Bieta’s ability to defend 1298781 Ontario at the trial.

(b) Impact of Removing Counsel on the Plaintiff’s Right to be Represented by Counsel of Choice

[20] It is evident on the record that removing Mr. Bruggeman as counsel for the plaintiff will have a devastating, if not litigation-ending, impact on this action. The plaintiff has detailed the substantial efforts to which she has gone to find one counsel who would represent her.

[21] The impact on the integrity of the administration of justice is an important factor on a motion such as this. The defendants argue that it would be unseemly to have Mr. Bruggeman appear both as a witness under their subpoena and as counsel for the plaintiff at this trial. While that may be less than ideal, if it does happen, what would be more troubling from the standpoint of the appearance of justice in this case, in my view, is for the plaintiff to find herself without counsel again, the very situation that led to the dismissal of the underlying actions.

[22] In my view, a fair-minded reasonably informed member of the public would not conclude that the proper administration of justice requires the removal of Mr. Bruggeman. Given the decision on a motion such as this is to take into account all the factors of the case, that member of the public may well consider that, in these particular circumstances, the proper administration of justice would require that the plaintiff be permitted to continue with Mr. Bruggeman. (Mazinani v. Bindoo [2013] O.J. No. 3540, as considered by Master McGraw in Chernukhina v. Gurevich 2018 ONSC 330, [2018] O.J. No. 149. On the facts of this case, the removal of the plaintiff’s counsel would work a more serious injustice than permitting Mr. Bruggeman to remain on the record (Urquhart v. Allen Estate [1999] O.J. No. 4816 (S.C.J.) at paragraph 19).

[23] In all the circumstances of this case, I find that the proper administration of justice does not compel removal of Mr. Bruggeman as counsel for the plaintiff. The defendants’ motion is dismissed.

[24] The plaintiff is entitled to her costs of the motion which I fix on a partial indemnity basis in the amount of $10,000 payable by the defendants within 30 days.

Master Jolley

Date: 22 November 2019