Court File and Parties

COURT FILE NO.: 17-61616

DATE: 2020/09/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DOUGLAS RICHARD GRANT, LINDA CHRISTINE DEMARCHI, LAWRENCE JOSEPH GRANT, MARIE LOUISE FOXCROFT, THERESA COLLEEN GRANT, ELIZABETH ANNE STIPSITS and JAMES GERARD GRANT, Applicants

AND:

DONALD WAYNE GRANT, ESTATE TRUSTEE OF THE ESTATE OF CLAIRE GERTRUDE GRANT, Respondents

BEFORE: Mr. Justice D.A. Broad

COUNSEL: J. Ivan Marini, Counsel for the Applicants Richard P. Startek and Karen Morimoto, Counsel for the Respondent

HEARD: In writing pursuant to Rule 37.12.1(4)

ENDORSEMENT

Background

[1] The deceased Claire Gertrude Grant (the “deceased”) died, testate, on November 29, 2016. In her Last Will and Testament, she named her son Donald Wayne Grant as her sole Estate Trustee.

[2] Pursuant to an Application for Appointment of Estate Trustee filed January 19, 2017 a Certificate of Appointment of Estate Trustee was issued on May 11, 2017, naming the respondent Donald Wayne Grant as the Estate Trustee of the deceased’s estate (the “Estate”). No objection was taken by any of the beneficiaries of the Estate to the issuance of the Certificate of Appointment to the respondent.

[3] On May 17, 2017 the Notice of Application in the within proceeding was issued. The applicants are children of the deceased and siblings of the respondent. The deceased had 11 children. There are surviving children of the deceased who are not parties to the proceeding.

[4] The applicants claim the following relief in the Notice of Application:

(a) Removal of the respondent as Estate Trustee of the Estate;

(b) Appointment of one or both of the applicants Douglas Richard Grant and Marie Louise Foxcroft as Estate Trustee or Trustees of the Estate;

(c) An order directing the respondent to abstain from performing any acts in his capacity as Estate Trustee;

(d) An order prohibiting the respondent from selling, as Estate Trustee for the Estate, a named parcel of real property;

(e) a complete, accurate and unequivocal accounting by the respondent of the assets of the Estate; and

(f) the opinion, advice, and direction of the Court pertaining to the conduct of the respondent, as Estate Trustee, to date.

[5] The respondent made an application to pass the accounts of the Estate. The passing of accounts has been joined with the Application (together the “Proceeding”).

[6] Pursuant to the Case Management Direction of Regional Senior Justice Arrell on August 7, 2020, the Proceeding was been set for trial to commence on February 22, 2021 for one week.

Nature of the Motion

[7] The applicants have brought a motion for an order removing the firm of Startek, Peglar & Calcagni (Richard Startek) as lawyers of record for the Respondent Estate Trustee. The stated grounds for the motion are as follows:

(a) The firm of Startek, Peglar & Calcagni and Richard Startek specifically, have a serious conflict of interest in representing the respondent Estate Trustee;

(b) The Rules of Professional Conduct of the Law Society of Ontario, dealing with conflict of interest situations; and

(c) Richard Startek may be required to give oral evidence on several issues arising from the Application.

Evidence of Applicants in Support of the Motion

[8] The Motion is supported by the affidavits of the following:

(a) the applicant Douglas Richard Grant;

(b) the applicant Theresa Colleen Grant;

(c) counsel for the applicants James Ivan Marini.

[9] Douglas Richard Grant deposed in his Affidavit, inter alia, to the following:

(a) Richard Startek was married to his sister Susanne Grant for 18 years. He did not depose to the dates they were married, separated and divorced. From the Affidavits of Richard Startek and Susanne Grant, filed on behalf of the respondent, it appears that they were married on August 30, 1969, separated in the Spring of 1986 and divorced in 1991 or 1994;

(b) Richard Startek represented him in a criminal matter in approximately 1982;

(c) He had numerous discussions on personal and family-related matters with Richard Startek while he was married to Susanne Grant;

(d) As a former member of the Grant family, and by virtue of his representation of him in 1982, Richard Startek acquired information concerning him which Richard Startek may use against him at the trial of the proceeding. The affidavit does not specify the nature of the information referred to;

(e) Richard Startek will be required to be a witness on several issues relating to the Estate. The affidavit does not identify the issues which Mr. Startek will be required to testify in relation to;

(f) The deceased was assessed by a certified capacity assessor on December 4, 2014. The assessment was conducted in the office of Richard Startek’s law firm;

(g) The deceased did not like Richard Startek; and

(h) He feels very uncomfortable having to possibly respond to questions at trial posed by Richard Startek. He may have to make very disparaging remarks about Mr. Startek at the trial.

[10] Theresa Colleen Grant deposed in her Affidavit, inter alia, to the following:

(a) The matters referred to at paragraphs (a) and (g) above in relation to the affidavit of Douglas Richard Grant;

(b) She had numerous conversations with Richard Startek in different issues and she babysat his children on many occasions. The affidavit did not disclose the nature of the issues discussed nor did it provide a timeframe when the deponent babysat Richard Startek’s children or the nature of their interactions;

(c) Richard Startek will have to give evidence as to why the assessment of the deceased on December 4, 2014 was conducted at his office; and

(d) Richard Startek cannot be objective and fair.

[11] James Ivan Marini, counsel for the applicants, deposed in his affidavit, inter alia, to the following:

(a) Richard Startek wrote to him on March 24, 2017 stating, in part “if there is litigation involving the Estate, the Estate Trustee will retain counsel to deal with the litigation;”

(b) on June 28, 2017 Mr. Startek wrote to Mr. Marini stating, in part “there is no conflict with me acting in this matter, either as solicitor for the Estate Trustee or in the litigation… My client’s instructions and my advice that I would step aside as solicitor for the Estate Trustee during litigation changed after your client’s Application was served. I have every right to change my mind. My client has every right to retain me”;

(c) on July 6, 2017 Mr. Marini wrote to Mr. Startek stating, in part” this paragraph and your self-righteous assertions (which contradict your clear representations to date) will be dealt with in a formal Court Application.”

(d) The affidavit filed in support of the application by two of the applicants, Douglas Richard Grant and Marie Louise Foxcroft raise a number of issues, some of which will ultimately involve the participation of Richard Startek as a witness in the adjudication of the issues.

[12] Appended to the affidavit of each of Douglas Richard Grant and Theresa Colleen Grant was a letter from Mr. Marini to Richard Startek dated March 21, 2017 which they stated set out the basis that he should be prevented from acting on behalf of the Estate Trustee. Included was a statement that Richard Startek’s son, Richard G. Startek, was retained by the applicant Lawrence Joseph Grant pertaining to the purchase of a condominium unit in 2007. It is noted that neither Douglas Richard Grant or Theresa Colleen Grant deposed that they believed the contents of Mr. Marini’s letter to be true as required by Rule 39.01(5) of the Rules of Civil Procedure. Moreover, Lawrence Joseph Grant did not file an affidavit in support of the motion suggesting that he would be prejudiced by Richard Startek’s continued representation of the respondent.

Position of the Applicants

[13] In their Factum the applicants submit that Richard Startek should be removed as counsel of record for the respondent for the following reasons:

(a) he admitted in March 2017 that the respondent would retain separate counsel if the Estate issues became litigious, only to reverse his decision. The applicants say this demonstrates bad faith on his part;

(b) Rule 3.4-10 of the Rules of Professional Conduct of the Law Society of Ontario;

(c) although he did not act on behalf of all the applicants in legal-related matters, he was a brother-in-law of the applicants for 18 years and his personal knowledge arising from the familial relationship with the applicant’s places him in the professional conflict of interest in that whatever information he acquired as to the character and personalities of the applicants may be used by him in the cross-examinations. Moreover, he has acted on behalf of two of the applicants in past legal retainers;

(d) he may be required to appear as a witness to testify on the following issues:

(i) was he ever retained by the deceased to act on behalf of the estate of her late husband, or was he retained by the respondent?

(ii) the circumstances surrounding the retainer of the capacity assessor Ms. Boiago who carried out the assessment of the deceased in December 2014;

(iii) what personal evidence pertaining to the parents of the applicants and the respondent did he obtain in his representation of them?

(iv) what assets were included as part of the deceased’s Estate and why were certain assets not included?

(v) the circumstances pertaining to the sale of a vehicle once belonging to the applicants’ and the respondent’s father to his grandson (son of Mr. Startek and Susanne Grant) and the distribution of those funds to the Estate.

(e) there will be no prejudice to the removal of Mr. Startek as counsel for the respondent as he has had ample notice that he has been in a conflict of interest;

(f) the trial is not scheduled to proceed until February 2021. The applicants would have no objection to arranging a new timetable of dates to accommodate new counsel for the respondent.

[14] It is evident from the foregojng that the applicants rely on three primary grounds for removal of Richard Startek as counsel for the respondent:

(a) he acted in bad faith by reversing his previous representation that separate counsel would be retained if the Estate became litigious;

(b) he was previously related by marriage to the applicants and acted previously for one of the applicants on a criminal matter in 1982 and his son (presumably a member of his firm) acted for another of the applicants on a real estate transaction in 2007; and

(c) he may be a witness at the trial.

Analysis

(a) Alleged Bad Faith

[15] The applicants do not take the position that Richard Startek is estopped from acting for the respondent by reason of his earlier representation that separate counsel would be retained if the Estate became litigious. The applicants do not allege that they relied upon the representation to their detriment by changing their position or otherwise. They have cited no authority for the proposition that the circumstances give rise to a finding of bad faith.

[16] It is a fundamental value that a litigant should not be deprived of his or her choice of counsel without good cause (see McDonald Estate v. Martin 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at para. 16). Mr. Startek explained in his letter to Mr. Marini that the respondent had given him instructions to act on his behalf in connection with the Estate litigation. The applicants, in my view, have not demonstrated that the fact that Mr. Startek expressly or impliedly represented that he would not act for the respondent in future litigation involving the Estate represents “good cause” for depriving the respondent of his choice of counsel.

(b) Alleged Conflict of Interest by Having Acted for Two of the Applicants and By Reason of Having been Previously Related by Marriage to the Applicants

[17] In determining whether a disqualifying conflict of interest exists, Sopinka J. (for Dickson C.J.C. and La Forest and Gonthier JJ) at para. 16 of McDonald Estate stated:

[T]he court is concerned with at least three competing values. There is first of all the concern to maintain the high standards of the legal profession and the integrity of our system of justice. Furthermore, there is the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause. Finally, there is the desirability of permitting reasonable mobility in the legal profession.

[18] Sopinka, J. articulated the test for a finding of a disqualifying conflict at pars. 47-48 as follows:

[T]he test must be such that the public, represented by the reasonably-informed person, would be satisfied that no use of confidential information would occur. That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Is there a disqualifying conflict of interest? In this regard, it must be stressed that this conclusion is predicated on the fact that the client does not consent to, but is objecting to, the retainer which gives rise to the alleged conflict.

Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?

[19] In my view the public, represented by the reasonably-informed person, would be satisfied that no use of confidential information would occur by reason of Mr. Startek having acted for the applicant Douglas Richard Grant thirty-eight years ago in an unrelated criminal matter. Douglas Richard Grant deposed to no disclosure of confidential information to Mr. Startek in connection with that retainer, and certainly no disclosure that would be relevant to the issue at hand or that would create a risk of it being used to his detriment.

[20] Similarly, there is no basis to suggest that the fact that Mr. Startek’s son acted for the applicant Lawrence Joseph Grant thirteen years ago in connection with a real estate transaction, would give rise to a risk of confidential information being used by Mr. Startek to the prejudice of Lawrence Joseph Grant. Moreover, there is no affidavit evidence from Lawrence Joseph Grant that he shared any confidential information with Richard Startek or with his son, and certainly none that would be relevant in any way to the issues in the current litigation or that would create any risk of it being used to the detriment of Lawrence Joseph Grant.

[21] As indicated above, Douglas Richard Grant and Theresa Collen Grant each deposed that they had personal and family-related conversations with Richard Startek while he was married to their sister Susanne Grant. The evidence indicated that Richard Startek and Susanne Grant separated over thirty-four years ago. Neither of the deponents disclosed the nature or subject-matters of their conversations with Mr. Startek, nor did they suggest that there is a risk that any statements that they made to, or information that they may have shared with, Mr. Startek while he was married to their sister will be used to their prejudice.

[22] In my view, the public, represented by the reasonably-informed person, would be satisfied that no use of confidential information would occur by reason of any conversations that the applicants may have had with Richard Startek between 1969 and 1986.

(c) Suggestion that Richard Startek May Be a Witness at Trial

[23] In the recent case of Chernukhina v. Gurevich, 2018 ONSC 330 (S.C.J.) Master McGraw adopted the comprehensive summary, provided by Master Glustein (as he then was) in Mazinani v. Bindoo, 2013 ONSC 4744 (Ont. S.C.J.) at paragraphs 60-61, of the principles applicable on a motion to remove a lawyer of record who may be a witness at trial, as follows (reference to authorities omitted):

i.) The court has inherent jurisdiction to remove a lawyer from the record who has a conflict of interest.

ii.) The inherent jurisdiction extends to removing a lawyer who may be a witness in a case in which the lawyer acts as counsel;

iii.) The court on a motion to remove a lawyer of record who may be a witness at trial must consider (a) the maintenance of high standards of the legal profession and the integrity of our system of justice and (b) the right of a litigant to its choice of counsel, which he or she should not be deprived of without good cause;

iv.) The test to be applied on a motion to remove a lawyer from the record who may be a witness is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires the removal of the lawyer. This determination is objective, fact-specific and based on an examination of all factors in the case;

v.) The court's concern of a lawyer appearing as a witness is that (i) there may be a conflict of interest between the lawyer and client and (ii) the administration of justice can be impaired by a conflict between the lawyer's obligations of objectivity and detachment which are owed to the court and the lawyer's obligation to his or her client to present evidence in as favourable a light as possible;

vi.) The integrity of a lawyer's role as an advocate is also undermined if the lawyer was a witness to a critical meeting;

vii.) Rule 4.02(2) of the Rules of Professional Conduct of the Law Society of Upper Canada provides that "Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted”;

viii.) The commentary to Rule 4.02(2) sets out the concern that a lawyer who puts personal beliefs into issue acts contrary to the lawyer's role as an objective advocate and puts the lawyer's credibility at issue. The commentary provides:

"A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer".

ix.) Rules of Professional Conduct are not binding on a court, but are persuasive as an important statement of public policy;

x.) Courts should be reluctant to make what may be premature orders preventing lawyers from continuing to act. If the evidence does not necessarily have to come from the lawyer and may be obtained through admissions or documentary productions, a removal order will be premature;

xi.) If there is some doubt or "merely a potential" that a lawyer will be called as a witness at trial, the courts should be more generous in allowing the lawyer to remain on the record and deferring the matter until after discoveries or leaving the matter to the trial judge;

xii.) 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 only do so in clear cases;

xiii.) A court should be slow to interfere with the litigant's right to choose his or her counsel. When a litigant is deprived of the services of a lawyer whom she has chosen, there will be some hardship imposed on her. The imposition of such hardship can only be justified if it is done to prevent the imposition of a more serious injustice. It follows that the removal of counsel should be only to relieve the risk of real mischief and not a mere perception of mischief;

xiv) Certainty that a lawyer will be called as a witness is not required. Rather, the court must consider the likelihood of the lawyer being called as a witness;

xv.) 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 that there is a real basis to believe counsel can likely, or probably, provide material evidence;

xvi.) While courts have acknowledged that the freedom to choose counsel is an important interest to protect, it is not an absolute right. The right to be represented by counsel of choice can be outweighed when the administration of justice would be detrimentally affected; and

xvii.) The court should approach a motion to remove a lawyer of record who may be a witness at trial by following a flexible approach and consider each case on its own merits.

[24] The Divisional Court expressed the relevant considerations on a motion to remove a lawyer of record on the basis that she or he may be a witness at trial in Essa Township v. Guergis, 1993 CanLII 8756 (ON SCDC), [1993] O.J. No. 2581 (Div. Ct.) at para. 48:

In these applications a court should approach the matter by following a flexible approach and consider each case on its own merits. A variety of factors should be considered. These will include:

— the stage of the proceedings;

— the likelihood that the witness will be called;

— the good faith (or otherwise) of the party making the application;

— the significance of the evidence to be led;

— the impact of removing counsel on the party's right to be represented by counsel of choice;

— whether trial is by judge or jury;

— the likelihood of a real conflict arising or that the evidence will be "tainted";

— who will call the witness if, for example, there is a probability counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising;

— the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

[25] The only issues identified in the applicants’ Factum upon which Mr. Startek may possibly be called to give evidence are the five listed at para. 11(d) above.

[26] In my view none of these issues are relevant to the relief sought by the applicants in the Notice of Application or in the passing of accounts applied for by the respondent, or if they may possibly be relevant, there is no basis to suggest that Mr. Startek can likely provide material evidence on them. Specifically:

(a) Whether Mr. Startek was retained in connection with the estate of the deceased’s late husband does not relate to the relief sought in relation to the Estate of the deceased;

(b) No issue was taken by the applicants in relation to the respondent’s conduct as the deceased’s Power of Attorney prior to her death. Moreover, the uncontradicted evidence of Mr. Startek is that he offered the use for the boardroom in his firms’ office for the assessor Ms. Boiago to meet with the deceased, and that he had no other involvement in the assessment;

(c) Any information that Mr. Startek received while representing the deceased and her husband prior to their deaths cannot be relevant to the relief sought in the Notice of Application, which has to do with the respondent’s conduct as Estate Trustee;

(d) Evidence relating to what assets were included as part of the deceased’s Estate may be provided by the respondent, whose responsibility as Estate Trustee includes gathering in the assets of the Estate. It is not established that there is a real basis to believe Mr. Startek can likely, or probably, provide material evidence on this issue;

(e) With respect to the circumstances surrounding the sale of a vehicle by the deceased in her lifetime to her grandson Paul Startek. Richard Startek deposed in his affidavit that Donald Wayne Grant offered the vehicle to all of his siblings and none of them wished to purchase it. The sale of the vehicle to Paul Startek took place two years prior to the deceased’s death with the purchase price being paid to the deceased. This evidence is not challenged by the applicants and Richard Startek was not cross-examined on his affidavit. The circumstances of the sale of the vehicle are not relevant to the issues in the proceeding.

[27] The applicants also made reference in the material to a transaction involving the transfer by the deceased and her husband in 2011 of a cottage property on Wolfe Island to themselves and the respondent and his son Ryan Donald Grant as joint tenants. The affidavit of Richard Startek discloses that another lawyer David Hurren acted for the deceased and her husband on this transaction and that he did not do so. This evidence is not disputed, and Richard Startek was not cross-examined on his affidavit.

[28] In my view the applicants have not established a real basis to believe Mr. Startek can likely, or probably, provide material evidence on any issue related to the Wolfe Island property.

[29] The proceedings are at a late stage and a trial date has been assigned. There is little likelihood that Richard Startek will be called as a witness on any issues raised by the pleadings in the proceeding. The applicants do not suggest in their materials that they intend to call Richard Startek as a witness at trial.

[30] Susanne Grant, who is a beneficiary of the Estate but not a party to the proceeding, deposed in her affidavit that she is opposed to the removal of Richard Startek as lawyer of record at this time. She stated that she is very concerned that if Mr. Startek and his firm are removed there will be significant monetary implications for the Estate related to bringing another law firm on to represent the Estate, which would not be fair to her as a beneficiary.

[31] The applicants first raised the issue of Mr. Startek’s representation in 2017 and delayed in bringing the motion for his removal until August 2020, after extensive preparation for trial had been completed by Mr. Startek and his firm and the date for trial had been set.

[32] This is far from the type of clear case for removal of the lawyer for a party that would justify the enormous waste of time and money and the substantial delay which would result.

Disposition

[33] For the reasons set forth above, the motion is dismissed.

Costs

[34] The parties are strongly urged to settle the issue of costs between themselves. If the parties are unable to do so, the respondent may make written submissions as to costs within 14 days of the release of this Endorsement. The applicants have 7 days after receipt of the respondent’s submissions to respond. The written submissions shall not exceed three (3) double-spaced pages exclusive of Bills of Costs or Costs Outlines, offers to settle and authorities. All such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

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D. A. Broad, J.

Date: September 22, 2020