Court File and Parties
COURT FILE NO.: FS-13-388522 & CV-13-476682
DATE: 20200919
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ARTHUR FROOM
Applicant
– and –
SONIA LAFONTAINE
Respondent
– AND BETWEEN –
1285310 ONTARIO LIMITED
Applicant
– and –
RAHIRNA PANES SHEICK-ALI and ASR MEDICAL RESEARCH CORPORATION
Respondents
Self-represented, Applicant
No one appearing for the Respondent
No one appearing for the Applicant
Self-represented, Respondent, Rahirna Panes Sheick-Ali
No one appearing for Respondent, ASR Medical Research Corporation
HEARD: September 17, 2020
ENDORSEMENT
faieta J.:
[1] MacDonald & Partners LLP (“MacDonald”) brings this motion to be removed as solicitor of record for the Applicant Arthur Froom (Arthur”) and Rahima Sheick-Ali (“Rahima”), who is described as Rahirna Panes Sheick-Ali in the proceedings shown above.
[2] Geoffrey Wells, a partner at MacDonald, has represented Arthur and Rahima throughout, and states:
I wish to be clear that the primary basis for this request to remove ourselves as counsel is because of the fundamental disagreement concerning the direction of this matter and the conflict between me and Arthur. I fully anticipate that Arthur will allege my motivation to remove is financial but I don’t care about the fees written off or our outstanding account.
[3] Arthur seeks an adjournment of the hearing of this motion and, alternatively, in the event that MacDonald’s motion is granted, a stay of this decision.
[4] For the reasons described below, I have granted the motion and dismissed Arthur’s cross-motion for an adjournment and stay.
BACKGROUND
[5] Arthur and Sonia were married in 1992. There are no children of the marriage. They operated a cosmetic surgery clinic in Toronto and New York. Sonia was convicted of healthcare fraud offences, including insurance fraud, perjury and witness tampering, which led to her incarceration in the U.S.A. Sonia was incarcerated from 1998 to 2011.
[6] In 2003, while Sonia was incarcerated, Arthur arranged for the purchase a property, municipally known as 1402-15 McMurrich Street, Toronto, (the “Property”) by 1285310 Ontario Limited (“128”). Arthur resided at the property with his common law spouse, Rahima Panes Sheick-Ali which followed by the birth of their daughter in December, 2008.
[7] Arthur was extradited to the USA in 2008. He was also convicted of healthcare fraud offences and was sentenced to 10 years imprisonment.
[8] Sonia returned to Toronto upon her release from prison in 2008.
[9] In March 2013, Sonia took steps for 128 to commence the above-noted Civil Application for an Order to evict Rahima from the Property. Rahima retained Wells to defend the Notice of Application. While incarcerated in Florida, Arthur also retained Wells to commence a proceeding under the Family Law Act against Sonia for a declaration that he owns 128, other corporations, such as Medical Group Research Associates and other properties (including two other condominiums at 15 McMurrich Street, Toronto) along with an order for the equalization of their net family property. Aside from a modest deposit, the retainer contemplated that the balance of the fees would be paid from the sale of the properties that were the subject of the litigation.
[10] Justice Chapnik ordered that these two proceedings be consolidated in 2014: See 1285310 Ontario Limited v Sheick-Ali, 2014 ONSC 4116.
[11] Sonia placed a mortgage in the amount of $300,000 against the Property in favour of Ms. Robin Seligman shortly after these proceedings were consolidated. Ms. Seligman has commenced a foreclosure action against 128. Stewart Title is defending that action and has counterclaim against Sonia for granting a fraudulent mortgage.
[12] Arthur was released from custody in 2015. Arthur and Rahima did not resume their common law relationship. He continues to reside in Florida. Rahima continues to reside in the Property with their daughter. Wells has not had any communication with Rahima in five years given the limited scope of the Civil Application and the fact that the dispute over the ownership of the Property is subsumed in the family law proceeding which addresses all of the ownership disputes that engage Arthur and Sonia and for which Arthur instructs Wells.
[13] At Wells’ request, a case conference was held on October 11, 2019 before Justice Nakonechny. An adjournment was granted so that Sonia’s new counsel could attend. On a temporary without prejudice basis, both parties were prohibited from taking any steps to sell or encumber property that is the subject of these proceedings. Both parties were ordered to file an updated financial statement and a case conference brief.
[14] A further case conference was held on December 11, 2019 before Justice Goodman. Neither party filed an updated financial statement nor a case conference brief. She stated:
… in light of the manner in which the parties have proceeded since the endorsement of Nakonechny J. there is reason to be concerned about the speed with which this case will proceed to a timely resolution at a trial or otherwise.
[15] The parties served their updated financial statements in January, 2020.
[16] Sonia’s counsel has scheduled a case conference for October 14, 2020.
[17] It will likely be difficult for a Court to determine whether Arthur or Sonia is the sole shareholder of 128 as they each claim. There does not appear to be any available credible evidence to support their positions. If there was, I expect that it would have been placed before this Court long ago. Further, the lawyer that arranged for the incorporation of 128 in 2011 was a friend of Arthur and Sonia that was disbarred before his death. If the ownership issues are not settled, then the determination of ownership may have to turn on the evidence of Arthur and Sonia, both of whom are convicted fraudsters.
[18] Both Arthur and Rahima oppose this motion. Arthur states that he and Wells have never had “irreconcilable differences”. He also states that he will be unable to find another lawyer to represent them and thus he, Rahima and their daughter, will suffer great prejudice. He also states that this motion should be dismissed for delay.
ANALYSIS
[19] The Family Law Rules state:
A lawyer may make a motion for an order to be removed from a case, with notice to the client: Rule 4(12)
The affidavit in support of the motion shall indicate what stage the case is at, the next event in the case and any scheduled dates: Rule 4(14)
The evidence in support of the motion shall not be served on the other parties, the continuing record nor the court file after the motion is heard: Rule 4(13)
[20] In Cunningham v. Lilles, 2010 SCC 10, the Supreme Court of Canada outlined the following principles on which a lawyer may be permitted to withdraw from acting for a client in a criminal matter:
As an incident of its inherent jurisdiction to ensure it can function as a court of law and fulfil their mandate to administer justice, a Superior Court may remove counsel from the record and may refuse to grant counsel’s application for withdrawal; Cunningham, para. 18;
“Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice”: Cunningham, para. 44;
“If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.”: Cunningham, para. 47;
If timing is an issue, and counsel advises that he or she seeks to withdraw for an ethical reason, such as a violation of a Law Society’s rules of professional conduct, it would be inappropriate for a court to require counsel to continue to act: Cunningham, para. 49;
If timing is an issue, and counsel advises that he or she seeks to withdraw for any other reason, such as non-payment of fees or counsel’s workload, then the court should consider various factors including whether it is feasible for the client to represent himself or herself. [Emphasis added]
[21] In my view, the above principles are equally applicable when a solicitor seeks to withdraw from acting for a client in a civil proceeding and a family law proceeding.
[22] The Law Society of Ontario’s Rules of Professional Conduct informs the ethical reasons basis for a lawyer’s withdrawal. It states:
3.7-1 A lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client. …
3.7-2 Subject to the rules about criminal proceedings and the direction of the tribunal, where there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw.
Commentary
A lawyer may have a justifiable cause for withdrawal in circumstances indicating a loss of confidence, for example, if a lawyer is deceived by their client, the client refuses to accept and act upon the lawyer's advice on a significant point, a client is persistently unreasonable or uncooperative in a material respect, there is a material breakdown in communications, or the lawyer is facing difficulty in obtaining adequate instructions from the client. However, the lawyer should not use the threat of withdrawal as a device to force a hasty decision by the client on a difficult question.
Timing
[23] Neither a trial or a trial management conference is scheduled. The next step in this proceeding is another case conference to be held on October 14, 2020. Arthur states that it will be impossible to find new counsel without funds and during COVID-19:
COVID-19 PANDEMIC MAKES FINDING COUNSEL IMPOSSIBLE IN THIS CASE AND WITHOUT FUNDS – This is the worst time in history to have counsel in a complex case with 5 corporations, fraudulent documents, theft of a million dollars, wife trying to force an eviction of a child by way of fraud deceit and a sea of propagated lies and forged corporate documents (which Stewart titles lawyer and fraud chief (former detective) found to be obvious and according to them “SLOPPY FRAUD”. As they could not keep up with their lies which grave rise to contradicting documents. That being said, no lawyer would likely take this case because [it] was made intentionally complex by Sonia’s former lawyer and Sonia’s sea of propagated lies and fake fraud forged documents. [COVID-19] is not the time to have counsel jump ship and it is respectfully submitted that this Pandemic should be factored into the danger that my child (HER PROTECTION IS MY PRIMARY OBJECTIVE IN THESE PROCEEDINGS, MONEY COMES SECOND, HER SAFETY AND WELFARE COMES FIRST AND FOREMOST).
[24] This submission is at odds with Arthur’s request to adjourn this motion for a full day hearing so that he and Rahima could be represented by counsel. I dismissed his request for an adjournment as Arthur served and filed more than two hundred pages of documents comprised of several lengthy declarations, exhibits and a factum both for himself and Rahima. In this context, I find that the purpose of the request for an adjournment was merely to delay the hearing of MacDonald’s motion for the sake of delay and thus an adjournment is not in the interests of justice.
[25] Accordingly, I am satisfied that MacDonald’s motion should be granted as it is brought well in advance of the scheduled case conference and an adjournment should be unnecessary assuming Arthur and Rahima act responsibly.
Ethical Reasons
[26] In this regard, Wells raises three points.
[27] First, he has been unable to obtain adequate instructions in respect of the settlement of this litigation.
[28] Second, there has been a breakdown in communications. Wells states that he had a particularly unpleasant telephone call with Arthur prior to the case conference held in December, 2019.
[29] Third, Wells has “nothing left to give Arthur” after seven years of extremely unpleasant litigation.
[30] Arthur states that:
Mr. Wells and I can resolve the issue over money. And there is no confidence issue (a term that has no real meaning) and seemingly abused by the profession. The Court of Appeal if need be will address that cliché Loss of Confidence which is seemingly used erroneously on trumped up fake claims of attorney/client disagreements.
[31] Rahima states that she has never had a dispute of any kind with Wells. This is understandable given that she has not spoken with him in about five years and that whether she should be permitted to remain in the Property is a matter that is subsumed by the family law proceeding which is controlled by Arthur.
[32] Even if the timing of the withdrawal of MacDonald’s services was an issue, I find that it would be inappropriate to require MacDonald to continue to represent Wells in the above circumstances.
Other Reasons
[33] MacDonald also submits that there is an outstanding account of almost $8,000.00. Arthur denies that any money is owed. Wells states that MacDonald has written off substantial fees and that Arthur has repeatedly refused to provide security for his account. In any event, Wells made it clear that he does not “care about the fees written off or our outstanding account” and that MacDonald does not seek to withdraw on that basis.
Delay
[34] Arthur also submits that MacDonald’s motion to be removed should be dismissed for delay. He submits that the motion should have been brought earlier. While Wells admits that he told Arthur in the last 18 months that he wished to be removed as counsel because of their “fundamental disagreement” regarding this litigation, I find that there has been no prejudice to Arthur or Rahima as a result of Wells continuing to do his best to represent them rather than bring this motion. In particular, there is no evidence that any delay by MacDonald in bringing this motion has prejudiced their ability to retain other counsel, nor has a trial been scheduled. Further, Arthur’s reliance on ABN Amro Bank Canada v. Krupp MaK Maschinenbau GmbH, 1994 CanLII 7302 (ON SC), [1994] O.J. No. 1979 and Crystal Heights Co-operative Inc. v. Barban Builders Inc., [1987] O.J. No. 1518, is misplaced as they are distinguishable on their facts. Those cases did not involve a lawyer seeking to be removed from the record, but rather an opposing party seeking to have opposing counsel removed on the basis of a conflict of interest.
Request for Stay
[35] Neither Arthur nor Sonia filed a motion for a stay of this decision. Even if they had done so, I would have dismissed their motion for a stay of this decision pending an appeal as they have not provided any compelling reason to grant a stay. Accordingly, I find that that it is not in the interests of justice to grant a stay pending the appeal.
CONCLUSIONS
[36] I find that it would not result in serious harm to the administration of justice to permit MacDonald to withdraw as counsel of record for Arthur and Rahima.
[37] Accordingly, I make the following Order:
MacDonald & Partners LLP is hereby removed as solicitor of record for Arthur Froom and Rahima Sheick-Ali, who is described as Rahirna Panes Sheick-Ali, in the Applications shown in the title of proceeding;
The evidence on this motion shall be sealed in order to preserve solicitor and client privilege;
This Order shall be served upon Arthur Froom by mail at his address of record, 1985 South Ocean Drive, Unit 14D, Hallandale Beach, Florida 33009 and by email at asfasf123456782@gmail.com;
This Order shall be served upon Rahima Sheick-Ali by mail at her address of record, Unit 1402-15 McMurrich Street, Toronto and by email at lrahimal@hotmail.com;
This Order takes effect immediately without a formal Order being issued and entered.
RELEASED: September 19, 2020
____________________ Faieta J.